INAUGURAL 


ADDRESSES 


THEODORE    W.    DAYIGHT, 


PEOFKSSOB     OF     LAW, 


GEORGE    P.  MARSH, 

PROFESSOR    OF    F.NOLISH     LITKBATCBE, 


COLUMBIA    COLLEGE, 


NEW  YORK. 


NEW    YORK: 

BY    AUTHORITY    OF    THE    TRUSTEES. 

1859. 


WYNKOOP,  HALLENBECK  &  THOMAS,  PRINTERS, 
No.  113  Fl'Lton  sTBiii;T,  Ni:w  York. 


r> 


ID 


AN  INTRODUCTORY  LECTURE. 


DELIVERED    BEFORE    THE 


LAW  CLASS  OF  COLUMBIA  COLLEGE, 

NEW   YORK, 

ON  MONDAY,  NOVEMBER  3,  1858, 
BY  THEODORE  W.   DWIGHT, 

PKOFESSOR  OF  LAW    &c. 


..'5550 


OUR  MUNICIPAL   LAW, 


AND      THE 


BEST  MODE  OF  ACQUIRING  A  KNOWLEDGE  OF  IT. 


Gentlemen  of  the  Law  Class  : 

The  subject  to  wliich  we  invite  your  attention  is 
the  science  of  Municipal  Law.  Tliis  science,  altliougli 
special  in  its  charactei-,  lias  relations  to  law  in  gene- 
ral, and  cannot  be  compreliensively  studied  witliout 
tracing  tbose  relations  or  connections.  Most  writers 
upon  special  subjects  of  Jurisprudence,  as,  for  exam- 
ple, Blackstone  in  his  commentaries  upon  our  Muni- 
cipal Law,  or  Hooker  in  his  "Ecclesiastical  Polity  of 
England,"  introduce  their  theme  to  the  reader  by 
a  general  disquisition  upon  law  in  the  abstract — upon 
the  divine  law  as  revealed  in  the  Bible,  upon  the  law 
of  nature  and  of  reason — and  thus  deduce  their  own 
topic  from  the  wider  principle.  Hooker,  by  a  bold 
personification,  represents  all  nature  as  actually  ren- 
dering a  voluntary  and  a  glad  devotion  to  the 
Supreme  Lawgiver,  as  it  yields  an  unswer\dng  obedi- 
ence to  appointed  laws.     "What  if,"  says  he,  "nature 


MK.     DWIGIIt's     address. 


should  leave  for  a  wMle  the  observation  of  her  own 
laws;  if  the  frame  of  that  heavenly  arch  erected 
over  our  heads  should  loosen  arid  dissolve  itself;  if 
celestial  spheres  should  forget  theu'  wonted  motions, 
and  turn  themselves  any  way,  as  it  might  happen ;  if 
the  prince  of  the  lights  of  Heaven,  which  now  as  a 
giant  doth  run  his  unwearied  course,  should  through 
a  languishing  faintness  begin  to  stand  and  to  rest 
himself;  if  the  moon  should  wander  from  her  beaten 
way,  the  winds  breathe  out  their  last  gasp,. and.  the 
clouds  yield  no  rain — ^if  all  this  present  joyous  obedi- 
ence of  nature  should  be  intermitted,  what  would 
become  of  man  himself,"  &c.  He  then  proceeds  to 
speak  of  the  law  of  reason,  of  the  law  of  nations  and 
of  civil  society,  until  he  comes  by  easy  gradations  to 
his  immediate  subject. 

Such  a  view  would  carry  us  too  far  from  the  theme 
immediately  before  us,  and,  while  we  recognize  the 
connection  thus  indicated,  we  will  at  once  apply  our- 
selves to  our  own  municipal  law. 

By  one,  the  term  law  is  briefly  defined  to  1)e  "  a 
rule  of  action;"  by  another,  it  is  said,  "that  which  doth 
assign  to  each  thing  the  kind  of  work,  that  which 
doth  moderate  the  force  and  power,  that  which 
appoints  the  form  and  measure  of  working,  we  call 
law."* 

*  Hooker's  Ecclesiastical  Polity. 


MR.     DWIGHTS     ADDRESS.  3 

By  municipal  law  we  mean  the  rule  that  governs 
us  in  our  civil  conduct,  under  the  fundamental  law  of 
the  State.  This  is  divided  into  common  and  statute 
law ;  the  first  rests  upon  general  usage  as  its  basis, 
and  is  ascertained  by  judicial  decision ;  the  other  is 
directly  originated  by  the  Legislature. 

I  shall  not  attempt  on  this  occasion  to  give  a  de- 
tailed account  of  the  principles  of  our  Municipal  law. 
In  the  short  hour  allotted  to  me,  I  could  present 
but  a  barren  outline  of  its  provisions.  I  shall  have 
accomplished  my  purpose,  if  I  sketch  its  origin, 
some  of  its  vital,  distinctive  principles,  the  mode  of 
its  growth,  and  its  present  condition. 

It  is  to  be  stated  at  the  outset  that  Americans  did 
not  lay  the  foundations  of  American  Jurisprudence. 
These  were  built  by  other  hands.  Our  forefathers 
found  the  common  law  complete  in  its  essential  parts. 
They  adopted  it  without  shrewd  inquiry  into  its 
origin.  They  even  claimed  it  as  an  indefeasible  right 
under  the  sacred  law  of  descent.  Whether  induced 
to  leave  their  homes  by  persecution,  or  allured  by 
the  persuasive  voice  of  ambition,  or  charmed  by  the 
prospects  of  immediate  wealth — whether  they  came 
with  their  fortunes  or  destitute  of  means — whatever 
else  they  brought  with  them,  or  whatever  they  aban- 
doned, they  claimed  the  law  of  England  as  theii*  own ; 
as  part  of  their  own  persons  ;  as  inhering  essentially 


ME.     DWIGHt's     address. 


in  the  very  notion  of  tlieir  property.  The  very  term 
was,  doubtless,  dear  to  them.  It  was  the  common  law. 
It  was  like  the  common  sun  that  lighted  them,  the 
common  air  they  breathed.  They  no  more  thought 
of  criticising  or  questioning  the  legitimacy  of  the 
one  than  of  the  other.  Here,  without  class  distinc- 
tions, it  sheltered  the  evil  and  the  good.  It  had  in 
part  originated  in  the  forest;  it  protected  the  hardy 
sons  of  our  forest,  expanded  with  their  growth,  and 
still  continued  to  govern  them  as  their  once  uncul- 
tivated wastes  were  organized  into  States  and  blos- 
somed with  imperial  cities. 

The  Roman  law,  which  is  the  basis  of  the  legal 
codes  of  Continental  Europe,  had  been  termed  the 
civil  law.  It  treated  the  individual  as  an  incident  to 
the  State,  and  regarded  him  in  the  main  as  a  citizen. 
To  it  we  owe  our  city  corporations,  and  our  now 
sacred  right  of  local  self-government.  The  common 
law,  however,  regards  the  person  more  strictly  in  his 
individual  nature,  and  bears  proudly  on  its  fi*ont  per- 
sonal freedom,  considering  the  State  as  the  means  for 
individual  protection  and  development.  The  flame 
of  liberty  which  we  can  perceive,  through  the  vistas 
of  history,  gleaming  from  the  morasses  of  the  Ger- 
man forests,  was  carried  to  England,  where  it  burned 
with  a  purer  hght.  No  rude  blast  was  allowed  to 
quench  its  virgin  fire.     The  early  Englishmen  cov- 


ME.   dwight's   address.  5 

ered  it,  while  it  kindled,  with  their  shields,  till  Magna 
Charta,  in  every  line,  grew  ruddy  with  its  glow. 

The  exact  source  of  the  common  law  no  one  can 
trace.  It  was  formed  at  the  confluence  of  many 
separate  streams.  Undoubtedly  the  Koman  law  con- 
tributed largely  to  its  formation.  Mr.  Spence  has 
shown  this  at  large,  and  with  elaborate  research,  in 
his  work  called  "  the  Equitable  Jurisdiction  of  the 
Court  of  Chancery."* 

*  This  point  is  still  debated  among  law  writers.  If,  however,  any  one 
will  examine  Bracton^s  very  early  work  with  care,  comparing  it  closely 
with  parallel  passages  in  the  Institutes  of  Justinian,  he  will  be  greatly  im- 
pressed with  the  fact  that  the  arrangement  of  subjects,  collocation  of  passages, 
and  the  precise  language  of  Justinian  are  reproduced  by  the  later  author. 
He  will  be  almost  persuaded  that  he  is  reading  "  The  Institutes."  How  Lord 
Campbell  (Lives  of  the  Ch.  Justices,  vol.  I.,  p.  63)  can  say  that  Bracton  uses 
the  civil  law  only  for  illustration,  I  cannot  conceive.  Although  he  was 
a  civilian,  yet  he  does  not  write  as  though  his  statements  were  new,  but  pro- 
pounds them  as  accepted  rules.  However,  Cooper,  in  his  work  on  "  The 
Public  Records,"  vol.  II.,  p.  401,  says,  that  there  are  two  distinct  recensions 
of  Bracton,  in  one  of  which  many  of  the  passages  borrowed  from  the  civil  law 
do  not  appear.  "  The  laws  of  all  nations  are,  doubtless,  raised  out  of  the  ashes 
of  the  civil  law,"  per  Lord  Holt,  12  Mod.  R.,  482. 

Still,  it  is  fair  to  say,  that  the  Germans,  Anglo-Saxons  and  the  English,  in 
succession,  have,  in  many  instances,  shown  a  spirit  of  hostility  to  the  Roman 
law.  Florus  states,  that  when  the  Roman  commander,  Varus,  had  the  control 
of  the  German  provinces,  he  endeavored  to  govern  barbarians  by  the  civil 
law,  which  they  regarded  as  harsher  than  his  arms.  And  while  he  was  citing 
them  before  his  tribunals,  they  attacked  his  court  and  destroyed  his  legions. 
Having  taken  one  of  the  lawyer^  a  prisoner,  after  cutting  out  his  tongue 
they  sewed  up  his  mouth,  crying,  "  Now,  viper,  cease  to  hiss" — vipera  sibi- 
l<tre  dcsiste.     Book  IV.,  cap.  12. 

When  the  Saxons  first  attacked  England,  they,  like  the  other  barba- 
rians, had  a  great  aversion  to  towns,  and  suffered  those  who  were  engaged 
in  trade  to  carry  on  their  employment  undisturbed.  In  the  country,  however, 
they  appear  to  have  seized  the  whole  of  the  land,  and  to  have  driven  the  for- 
mer owners  into  exile,  or  to  have  reduced  them  into  slavery.     Their  complete 


b  MR.     DWIGHTB      ADDEESS. 

The  Anglo-Saxoiis  contributed  invaluable  results ; 
above  all,  in  the  respect  for  personal  freedom,  and  in 
the  love  of  order,  and  perhaps  in  a  rudimentary  trial 
by  jury.  It  may  be  that  relics  of  the  old  Briton 
law  may  remain,*  though  Gibbon's  remark  is  unques- 
tionably true,  "that  before  the  irruption  of  the  Saxons, 
England  had  been  moulded  into  the  elegant  and  ser- 
vile form  of  a  Roman  province,"  Avhile  some  of  Rome's 
greatest  jurists  sat  there  in  the  seat  of  judgment 
With  other  points  of  resemblance  between  the  devel- 
opment of  England  and  the  United  States,  they  are 
strikingly  alike  in  this  respect,  viz. :  that  each  is  a 
composite  nation.  In  the  beginning,  England  was  a 
prize  for  the  valiant ;  in  later  times,  an  asylum  for 
the  persecuted  and  the  outcast.  "  All  such  have 
crossed  the  sea,  and  made  the  great  island  their  coun- 
try. Thus  England  has  thriven  on  misfortunes,  and 
grown  great  out  of  ruins."  These  various  races  who 
have  struggled  there  for  the  mastery,  or  have  resorted 

subjugation  of  the  natives  appears  from  the  fact,  that  their  laws  are  wi-itten 
in  their  own  language.  (See  Spence's  Origin  of  Laws.)  Every  reader  of 
English  history  ■will  remember  that,  after  the  Xorman  conquest,  the  people 
continually  demanded  the  restoration  of  the  old  Anglo-Saxon  laws.  This 
feeling  may  have  been  carried  too  far,  in  some  respects.  See  Bell's  Comment- 
aries, 1,11.  "That  dread  of  the  arbitrary  maxims  of  the  civil  law,  which 
has  been  the  distinction  and  the  boast  of  England,  has  perhaps  produced  a 
bad  effect  in  matters  of  municipal  regulation,  though  of  invaluable  benefit  in 
the  formation  of  the  constitution." 

*  "  Questionless,  the  Saxons  made  a  mixture  of  the  British  customs  with 
tb*ir  own." — Seidell's  notes  to  Fortescue,  de  Laudibus  legum  Anglice,  chap.  17 . 


I^IE.     D  wight's     ADDEESS. 


tHther  as  a  refuge,  have  had  a  powerful  effect  on  tlie 
development  of  the  law.  Like  the  composition  of 
forces  in  mechanics,  the  combination  of  the  contend- 
ing powers  has  contributed  to  a  resultant  force  in  a 
new  direction. 

Thus,  while  we  may  admit  that  the  English  law 
incorporated  into  itself  many  of  the  doctrines  of  the 
civil  jurisprudence  of  Rome,  and  while  it  may  have 
no  claim  to  compare  with  that  splendid  code  for 
scientific  precision,  breadth  and  comprehensiveness  of 
view,  and  while  the  English  language  may  not  exj^ress 
legal  formulae  with  the  rigorous  accuracy  of  the  Latin 
tongue,  yet  we  may  with  pride  remember  that  this 
plain  common  law  contained  within  itself  that  poten- 
tial and  vital  element  so  lamentably  deficient  in  tlie 
former — ^legal  protection  for  individual  freedom.  "  The 
political  law  of  Rome  is  moulded,"  says  one,  "  in  its 
later  forms  in  an  oriental  seraglio,  and  was  fit  only 
for  a  debased  and  servile  population." 

Although  the  early  English  law  writer,  Bracton, 
copied  in  his  treatise  that  courtly  and  submissive 
maxim  of  the  Roman  code,  "  what  pleases  the  prince 
has  the  force  of  law,"'"  it  did  not  become  an  admitted 

*  Book  3d  of  Actions,  chap.  9.  Although  Bracton  admits  this  maxim, 
yet  in  a  fine  passage  in  the  same  connection  he  indicates  the  principles 
which  ought  to  govern  the  conduct  of  the  King.  "The  King  ought," 
he  says,  "  to  exercise  the  power  of  law  (which  is  the  power  of  God),  as  if 
he  were  the  vicar  and  minister  of   God  on  earth ;  the  power  of   doing 


8  .  ME.     DWIGHTS    ADDEESS. 

principle  in  jurisprudence.  This  exotic  could  not 
be  made  to  flourish,  upon  British  soil. 

The  true  theory  of  trial  by  jury  is  peculiar  to  the 
common  law.  This  mode  of  trial  was  not  created  by 
the  great  charter,  but  was  secured  by  it.  It  was  so 
well  known  then  as  to  be  described  by  mere  formu- 
lary words.     The   freeman  was   not  to   forfeit  his 

wrong  belongs  to  the  Devil,  and  not  to  God.  Therefore,  while  he  acts  justly, 
he  is  the  vicar  of  the  Eternal  King ;  but,  when  he  turns  aside  to  do  wrong,  he 
is  the  minister  of  the  Devil.  Nothing  is  so  appropriate  to  imperial  authority 
aS  to  rule  according  to  law,  and  to  submit  to  the  law  is  greater  than  it  is  to 
govern.  He  should  pay  a  proper  respect  to  the  law,  for  it  is  that  alone  which 
made  him  King.  He  is  no  King  whose  will  rules  and  not  law.  Let  him  be 
just  as  well  as  merciful,  and  let  his  eyes  so  precede  his  footsteps  that  his  judg- 
ment shall  not  vacillate  from  want  of  knowledge,  or  his  merciful  nature  be 
deceived  from  want  of  circumspection,  "&c.,  &c.  The  whole  section  is  worthy 
of  perusal.  Still  he  furnishes  no  remedy  for  the  King's  wrong  acts,  for  he 
says  in  another  place,  "  As,  however,  no  writ  can  be  directed  to  him,  his  sub- 
jects can  only  petition  that  he  will  correct  and  change  his  evil  course,  which 
if  he  will  not  do,  it  is  sufficient  punishment  that  he  will  hereafter  meet  the 
Lord  as  his  judge.  Let  no  one  presume  to  dispute  his  acts,  much  less  to 
oppose  him." 

[Although  Bracton,  according  to  Lord  Coke,  lived  when  Magna  Charta  was 
granted,  yet  it  is  not  much  dwelt  upon  or  recommended  by  him.  Barrington 
on  Statutes,  p.  1.     His  work  was  published  between  1262-7.] 

Fortcscue,  in  his  book  "  De  Laudibus  legum  Anglise,"  written  in  the  reign  of 
Henry  VL  {1463),  a  book  replete  with  noble  thoughts,  repudiated  the  civil  law 
doctrine.  In  his  assumed  conversation  with  Prince  Edward,  he  sajs,  "  Let  it  not 
trouble  you,  most  noble  prince,  to  know  whether  it  is  best  for  you  to  study 
the  civil  or  common  law,  for  the  King  of  England  cannot  change  or  alter  the 
laws  of  his  nation  at  his  pleasure.  For  he  governeth  his  people  by  power 
not  only  royal,  but  also  politique.  The  civil  law  says,  what  pleases  the  prince 
has  the  force  of  law.  But  this  much  differs  from  your  power,  for  the  people 
are  ruled  by  such  laws  as  they  themselves  desire.  Rejoice,  therefore,  0  Sove- 
rei°'n,  and  be  glad  that  the  law  of  the  land  is  such."  Old  translation.  He 
represents  that  many  of  the  former  kings  of  England  were  continually 
annoyed  because  they  could  not  introduce  this  slavish  principle  into  the 
English  law.  This  view  is  confirmed  by  the  existing  formula  of  assent  to  a 
law  passed  by  parliament — "  le  roi  le  veut." 


ME.    DWIGHTS    ADDEESS.  9 

life,  liberty,  or  property,  except  by  tlie  judgment 
of  liis  peers,  and  by  tlie  law  of  the  land'-^  Though 
the  Roman  law  recognized  the  selection  of  a  body 
of  men  to  whom  legal  questions  might  be  sub- 
mitted, somewhat  analogous  to  a  jury,  yet  it  did 
not  make  the  grand  and  capital  distmction  which 
has  preserved  our  theory  so  long,  and  has  incorpo- 
rated it  so  fully  into  the  fundamental  law  of  our 
States,  that  a  criminal  on  trial  cannot  dispense  with 
its  full  number,  even  if  he  will.  The  select  body, 
in  the  Koman  procedure,  in  its  later  development, 
pronounced  both  the  law  and  the  fact.f  They 
ultimately  needed  assistants,  or  assessors  who  knew 

*  I  am  aware  that  some  writers  explain  these  words  differently.  Mr.  Hal- 
lam  and  Mr.  Reeves  are  of  opinion  that  the  words  "  law  of  the  land  "  refer 
to  trial  by  combat  or  ordeal,  while  Mr.  Forsyth,  History  of  Trial  by  Jury, 
pages  108-12,  insists  that  the  words  "judgment  of  his  peers"  do  not  refer  to 
trial  by  jury.  His  main  argument  rests  upon  the  use  of  the  word  judgment. 
He  urges  that  the  verdict  of  the  jury  cannot  be  called  &  judgment,  and  believes 
that  the  words  refer  to  trial  in  county  and  manor  courts.  It  seems  incredible 
that  the  barons  of  England  should  have  made  this  great  State  paper  hinge  on 
trial  in  manorial  courts  and  on  the  law  of  combat  and  ordeal !  Technical 
legal  rules  may  be  pressed  too  far  in  interpreting  national  documents.  Trial 
by  jury  was  originally  a  trial  by  witnesses  from  the  vicinage,  who  informed 
the  judge  of  what  they  themselves  knew.  It  seems  probable  that,  while  they 
relied  mainly  on  their  own  knowledge,  they  also  heard  the  statements  of 
others.  In  the  progress  of  jurisprudence,  they  were  required  to  decide  only 
on  what  was  laid  before  them  as  evidence. 

I  Savigny,  History  of  Roman  Law,  vol.  I.,  ch.  4.  While  admitting  the 
above  proposition,  in  regard  to  the  jurisprudence  of  the  middle  ages,  he  regards 
the  earlier  Roman  practice  as  quite  similar  to  our  own.  In  this  he  appears  to 
have  been  mistaken.  The  Roman  judex  or  juryman  did  not  render  a  verdict 
for  the  court  to  act  upon,  but  gave  the  judgment.  This  is  a  very  important 
distinction,  for,  under  this  rule,  the  functions  of  the  juryman  were  in  the  same 
danger  of  being  absorbed  by  the  judge,  as  in  the  middle  ages. 


10  5IK.   dwight's   address. 

tlie  law.  These  associates  were  usually  wily  and 
subtle  men,  who  were  ^conversant  with  the  intric- 
acies of  jurisprudence.  They  gradually  elbowed 
out  their  unlearned  companions,  until  all  the  ques- 
tions were  decided  by  a  body  of  judges  who  had 
no  sympathy  with  the  people  at  large.  The  law 
became  more  scientific,  but  the  arbitrary  maxims 
borrowed  from  the  Roman  codes  were  thus  intro- 
duced into  the  laws  of  most  of  the  nations  of  Con- 
tinental Europe.  In  France,  justice  became  not  a 
duty,  but  an  inheritance.  The  right  of  judicature 
was  used  as  a  means  of  personal  gratification.  The 
bar,  as  Stephen  tell  us,  "formed  not  ?^  professions  l)ut 
a  caste',  a  distinct  noblesse,  in  favor  of  aristocratic 
rights,  and  the  rights  of  the  King.  The  aristocracy 
of  the  robe  had  no  alliance  with  the  democracy  of 
the  jury  box."* 

But  with  the  great  and  distinctive  idea  of  English 

*  Fortescue  says,  "that  no  other  nation  of  the  time  could  have  a  jury 
because  of  their  condition.  England  had  much  pasture  land  and  great 
numbers  of  cattle :  in  other  countries  men  were  mainly  devoted  to  tilling  the 
ground,  which  rural  exercise  engendereth  rudeness  of  wit  and  mind." 
" England  is  so  filled  with  landed  men  that  a 'thorp'  cannot  be  found  so 
small  where  dwelleth  not  a  Knight,  or  an  Esquire,  or  a  Franklein,  or  other 
freeholder,  while  there  are  many  yeomon  of  substantial  means  to  form  a 
jury.  In  other  countries  the  noblemen  have  small  store  of  pasture  and  live 
far  apart;  so,  as  these  cannot  be  assembled,  the  jury  must  be  made  up  of 
poor  men  who  are  not  ashamed  of  infamy,  or  are  so  blinded  with  rustic  and 
brute  rudeness  as  not  to  be  able  to  behold  the  clear  brightness  of  the  truth." 
De  Laudibus,  65,  69.  His  description  of  the  England  of  his  day  is  very 
attractive. 


ME.     DWIGIIt's     ADDEESS.  11 

jurisprudence,  that  the  Jury  are  to  take  the  law  from 
the  court,  it  cannot  disappear  from  our  tribunals.  Nor 
ought  it  to  fall  into  disuse ;  for,  aside  from  the  protec- 
tion furnished  to  the  individual,  its  value  as  a  means 
of  education  to  the  people  at  large  cannot  be  over- 
estimated. The  humblest  citizen  is  taught  to  think, 
to  analyze,  to  compare  evidence ;  while,  if  he  be  at  all 
thoughtful,  he  cannot  fail  to  perceive  that  a  new  dig- 
nity is  conferred  upon  him,  as  he  wields  one  of  the 
greatest  powers  exercised  by  the  Supreme  Being  over 
man — ^the  power  of  judging  of  his  acts.  Although 
this  principle  has  been  grafted  on  to  the  law  of 
some  of  the  countries  governed  by  the  ci\al  code,  it 
has  seemed  to  grow  like  a  scion  on  an  alien  stock.* 

So,  too,  the  bold  maxim,  that  "  Every  man's  house 
is  his  castle,"  though  evidently  the  product  of  an  age 
when  private  wars  were  in  vogue,  and  men  defended 
themselves  by  their  own  arm,  breathes  the  free  spirit 
of  the  forest  and  the  fastness.     It  is  not  the  polished 

*  From  1791,  when  trial  by  jury  was  introduced  into  France,  to  1848, 
the  law  concerning  juries  was  changed  no  less  than  twelve  times !  Edinburgh 
Review,  October,  1858.  The  author  of  the  able  article  referred  to  favors 
the  introduction  into  Scotland,  in  criminal  cases,  of  our  principle  of  an  unani- 
mous jury.  See  Forsyth,  "  Trial  by  Jury,"  for  a  full  account  of  the  European 
nations  which  have  introduced  the  system,  and  the  partial  success  which  has 
attended  its  introduction.  In  Buckle's  History  of  Civilization,  chap.  9,  are 
some  very  good  remarks  on  the  difference  between  individual  development  in 
England  and  in  France,  although,  in  pursuit  of  a  favorite  theory  he  does  not 
give  sufficient  prominence  to  the  Anglo-Saxon  element  in  English  character, 
nor  to  the  training  acquired  by  those  who  participate  injury  trials. 


12  MR.  dwight's  address. 

plirase  of  a  Cicero  or  Hortensiiis,  nor  can  its  equiva- 
lent be  found  in  the  pages  of  any  Roman  jurist. 
The  Konian  lawyer  Gaius  says  a  man's  house  is  his 
refuge.  So  is  the  sheepfold  for  the  lamb ;  but  what 
cares  the  wolf  for  that  when  he  enters.  The  common 
law  declares  that  a  man's  house  is  his  fortress^  which 
he  may  defend  against  all  assailants,  even  the  chief 
magistrate  himself,  unless  the  intruder  comes  armed 
with  a  legal  mandate  in  a  pix^per  case.  I  barely 
notice  those  delicate  theories  of  the  common  and 
statute  law,  in  regard  to  personal  security  and  per- 
sonal liberty,  so  delicate  that  the  most  sensitive  lady 
could  not  wall  lierself  around  with  a  protection  more 
complete  than  the  law  itself  furnishes,  as  well  as  the 
theory  that  each  individual  who  violates  the  rights 
of  others  is  personally  responsible,  and  cannot  shield 
himself  by  proving  the  mandate  of  a  superior  officer. 
In  these  respects  our  law  may  claim  a  proud  pre-emi- 
nence, as  long  as  man  is  of  more  consequence  than 
the  j)roperty  which  he  possesses. 

In  fine,  speaking  in  general  terms,  but  two  systems 
of  civil  jurisprudence  have  challenged  the  attention 
of  the  world :  the  civil  law  of  Rome  and  the  common 
law  of  Eno-land.  The  first  drew  the  most  refined 
and  pliilosophical  distinctions  in  regard  to  property. 
The  more  it  is  studied,  the  more  its  truly  symmetrical 
and  majestic  proportions  strike  the  beholder  with 


13 


astonisliment.  Its  penal  code  was  in  many  respects 
equitable,  but  in  tbe  matter  of  personal  rights  it  had 
yielded  to  absolutism.  It  was  like  an  accomplished 
gentleman,  who  had  every  grace  except  that  he 
lacked  independence  and  personal  freedom.  The 
conunon  law,  on  the  other  hand,  was  in  many  respects 
rude  and  unphilosophical ;  it  was,  in  its  early  forms 
technical  to  the  last  degree ;  its  discussions  were  often 
puerile,  and  its  solutions  worthless,  but  it  had  in  most 
vigorous  life  precisely  that  element  which  the  other 
system  lacked.  It  was  not  ashamed  to  borrow  of 
the  civil  code  many  of  its  best  provisions,  for  it  had 
vigor  enough  to  assimilate  them,  and  incorporate 
them  into  its  own  growth.  It  was  the  rude  man  of 
the  country,  capable,  by  contact  with  civilization,  of 
receiving  the  highest  polish,  and  it  was  free.  The 
one  has  aided  to  produce  continental  Europe,  the 
other,  England  and  the  United  States. 

In  the  next  place  the  English  law  has  a  history 
parallel  with  English  progress.  The  great  epochs  in 
the  history  of  the  nation  are  eras  in  the  history  of 
constitutional  and  municipal  law.  These  two  are  so 
closely  connected  together,  that  it  is  almost  impossible 
to  separate  them.  When  William  the  Norman,  in 
the  year  1066,  conquered,  or,  as  Sir  William  Black- 
stone  in  more  polished  terms  expresses  it,  acquired 
England,  he  with  rough  hand  repressed  the  murmurs 


14  MR.   dwight's    address. 

of  a  discontented  people,  and  laid  upon  tliem  all  the 
heavy  burdens  of  the  feudal  system.  After  him  Eng- 
land had  its  rulers  who  legalized  oppression,  and 
systematized  rapine.  So  far  had  this  gone,  that  in 
Stephen's  reign  men  openly  inveighed  against  Provi- 
dence, crying  aloud  that  "  Christ  and  his  saints  were 
asleep." 

The  great  progress  of  England  has   consisted  in 
protecting  the  person,  and  in  shaking  off  the  fetters 
from  the  law  of  her   landed   property.     I  do  not 
mean   that  she  has  abandoned  feudal  theories,  for, 
these  are  so  entwined  with  the  growth  of  the  law, 
that  to  pluck  them  out  would  be  to  root  up  the  law 
itself;  but  I  speak  of  the  feudal  clogs  on  transfer, 
the  exactions  and  tyrannous  burdens  of  the  system. 
Even  her  wars  have  been  but  of  little  consequence, 
except  so  far  as  they  have  effected  legal  and  constitu- 
tional alterations.     The  sea-girt  isle  has  always  been 
too  firmly  anchored  to  feel  sensibly  any  shock  from 
without.    The  surface  of  English  society  has  not  been 
disturbed  by  exterior  storms,  but  by  internal  volcanic 
eruj^tions.     Their  wars,  when  not   civil,  have   been 
fought  on  foreign  soil.     Her  citizens  may  have  been 
allured  by  the  visions  of  glory,  but  they  have  not 
been  compelled  to  summon  all  their  energies  for  the 
exercise  of  the  sacred  right  of  self-defense.     If  you 
ask  them  where  are  the  events  of  interest  in  their 


3IK.   dwight's   address.  15 

national  life,  they  do  not  point  to  Agincourt  or  Blen- 
heim, or  even  to  Waterloo,  but  to  Magna  Charta,  the 
Petition  of  Rights,  the  Habeas  Corpus  Act,  and  the  Bill 
of  Bights.  Magna  Charta  itself  contains  provisions  of 
a  strictly  legal  nature — such  as  the  one  which  secures 
a  widow's  right  of  dower  with  her  quarantine.  The 
members  of  the  bar  and  the  judges  sj)rang  from  the 
people,  and  by  means  of  the  jury  were  always  in 
contact  with  them.  In  fact,  the  bar  formed  one  of 
the  ties  by  which  the  middle  and  lower  classes  were 
bound  up  with  the  aristocracy.  Many  of  the  Chief 
Justices,  like  Lord  Chief  Justice  Hale,  had  the  advan- 
tage of  being  born  in  the  middle  ranks  of  life,  of 
receiving  a  liberal  education,  and  of  being  obliged  to 
depend  on  their  own  exertions  for  distinction.  Those 
who  were  descended  from  the  aristocratic  classes  were 
almost  all  younger  sons  of  younger  brothers,  and  had 
their  fortunes  to  make  and  their  fame  to  achieve. 
They  sympathized  with  the  progress  of  society. 
When  the  legislature  endeavored  to  establish  entailed 
estates,  the  judges  by  a  pious  fraud  defeated  them ; 
when  a  further  attempt  was  made  to  inti'oduce  perpe- 
tuities, under  the  subtle  doctrine  of  contingent  uses, 
Lord  Bacon,  in  his  character  of  lawyer,  suggested  the 
general  principles  of  that  happy  medium,  by  which 
estates  can  be  locked  up  in  families  for  a  well-ascer- 
tained and  limited  period.     When  Charles  the  Fii-st 


16  ME.     D  wight's     address. 

needed  to  be  checked  in  tlie  undue  exercise  of  his  pre- 
rogative, "  our  great  master,"  Lord  Coke,  framed  and 
carried  the  "petition  of  right"  with  such  lawyers  as 
Seklen  and  Pym  to  advocate  it.  When  the  okl  writ 
of  Habeas  Corpus,  which  sprang  out  of  Magna  Charta, 
needed  to  be  fortified  and  strengthened  by  new  pro- 
visions and  penalties,  Shaftesbury,  once  Lord  Chan- 
cellor, promoted  it.  When  the  House  of  Stuart  was 
driven  from  the  throne  and  the  Enghsh  constitution 
was  to  be  secured  for  all  time,  the  draft  of  the  sub- 
stance of  the  great  state  paper  of  that  period  made 
the  name  of  the  distinguished  lawyer,  Somers,  immor- 
tal. To  a  prominent  member  of  that  profession.  Sir 
S.  Romilly,  it  was  left  to  suggest  the  principles  of 
reforms  in  the  criminal  law,  while  the  recent  great 
changes  in  the  administration  of  the  ci^^l  code  have 
been  fostered  by  such  men  as  Lords  Brougham, 
Campbell  and  others,  although  due  credit  should  be 
given  to  the  philosopher  Bentham,  for  the  suggestion 
of  fruitful  ideas.  It  is  true,  that  leading  lawyers 
have  opposed  many  of  these  changes,  and  that  others, 
not  lawyers,  have  been  greatly  instrumental  in  the 
introduction  of  some  or  all  of  them.  I  do  not  deny 
that,  in  the  progress  of  the  law,  individual  members 
of  the  bar  have  been  oppressive  and  unjust,  and  that 
bad  monarchs  have  found  among  them  pHant,  expert 
and  unprincipled  servants.     Still  it  is  also  true  that. 


MR.   dwight's   address.  17 

in  every  crisis  where  a  bold  patriot  and  statesman 
from  theii-  body  was  needed,  he  could  readily  be 
found.  In  no  one  instance,  as  in  France  before  the 
Revolution,  have  the  whole  profession  abandoned  the 
peoj)le. 

The  influence  of  the  legal  profession  can  also  be 
traced  in  the  cautious  and  conservative  character  of 
all  the  changes  in  the  common  law.  From  the  earhest 
state  paper  down  to  the  latest,  the  plan  of  the  patriot 
lawyers  has  been,  to  retain,  so  far  as  practicable,  the 
old ;  to  add,  by  way  of  amendment,  the  new.  In  the 
same  spiiit  was  our  own  United  States  Constitution 
formed.  When  the  old  Confederation  was  found  to 
be  illogical  in  principle,  and  utterly  inefficient  in 
action,  it  was  not  resolved  to  discard  it,  but  only  to 
form  a  more  perfect  Union — to  estahlisli  justice — to 
insure  domestic  tranquillity.  There  have  been  more 
elegantly  devised  schemes  of  government,  both  in 
this  country  and  abroad,  than  either  of  these  consti- 
tutions— ^logically  faultless — beautiful  in  their  mechan- 
ism— their  only  possible  defect  was,  that,  when  an 
effort  was  made  to  put  them  in  motion,  they  would 
not  go.  On  the  other  hand,  the  Enghsh  constitution, 
largely  framed  by  lawyers,  full  of  contradictions  and 
absurd  legal  fictions,  has  been  practical  and  effective, 
and  in  its  development  has  made  rich  and  free  one 
of  the  greatest  nations  of  the  earth. 


18  MK.     DWIGHT^S    ADDKESS. 

This  historical  progress  of  the  law  is  important  in 
another  point  of  view — ^it  greatly  complicates  its 
study.  There  is  a  large  class  of  questions  in  the 
English  law  which  ought  to  have  no  place  in  a  truly 
philosophical  system  of  jurisprudence.  These  may 
in  general  terms  be  called  questions  of  forum — the 
inquiry  is  not  what  a  person's  rights  are,  but  where 
they  must  be  enforced.  So  that  rights  which  are 
denied  in  one  court  are  granted  in  another.  The 
Koman  theories  of  jurisprudence  admitted  no  such 
view.  Her  law,  in  its  full  development,  was  as  com- 
prehensive as  her  empire.  When  she  had  conquered 
a  nation,  she  annexed  it,  incorporated  it,  assimilated 
it,  while  important  legal  questions  arose  which  could 
only  be  settled  by  a  true  philosophy.* 

Although,  down  to  the  destruction  of  the  empii*e, 
there  was  a  distinction  between  cases  of  ordinary  and 
extraordinary  jurisdiction,  analogous  to  our  distinc- 
tion between  law  and  equity,  they  were  both  exam- 
ined by  the  same  judicial  officer.     Great  Britain  was 

*  "  Rome,  in  her  colonies,  continually  reproduced  herself;  every  colony  was 
but  an  image  of  the  mother  city,  with  like  holy  rites,  like  courts,  like  lawsi 
temples  and  places  of  public  commerce." — Selden.  The  early  forms  of  the 
Roman  law  were  very  technical.  As  the  republic  expanded  its  limits  it  became 
necessary  to  liberalize  her  jurisprudence.  Savigny  gives  an  account  of  the 
conflict  between  the  old  jurists,  who  strove  to  preserve  the  fixed  forms  of 
procedure,  and  the  judges  who  wished  to  introduce  broader  principles  to  meet 
the  exigencies  of  the  case.  The  author  shows,  in  a  truly  philosophical  spirit, 
how  all  law  must  be  treated  as  an  index  of  a  nation's  development,  and  that 
the  progress  of  legislation  is  not  governed  by  chance,  but  is  the  expression  of 
the  very  hfe  of  a  people. 


MB.     DWIGIITS     ADDRESS.  19 

insular  and  isolated.  If  she  liad  gained  territory,  slie 
would  have  governed  it  as  a  mere  dependency,  and 
would  have  applied  to  the  colonists  the  narrow  rules 
of  the  common  law.  She  had  no  great  legal  ques- 
tions with  which  to  deal  in  the  early  periods  of  her 
history.  Her  courts  were  created  by  accident,  or 
gained  jurisdiction  by  quarreling  for  it,  or  by  filching 
it  under  the  guise  of  some  subtle  legal  fiction.  The 
higher  clergy  had  the  care  of  testaments,  and  of  the 
administration  of  estates,  and  the  court  of  admiralty 
of  certain  questions  arising  at  sea.* 

The  common  law  courts  dealt  with  crimes,  person- 
al actions,  and  questions  in  regard  to  land,  while 
their  views  in  some  respects  were  so  narrow  that  the 
Court  of  Chancery  was  obliged  to  supply  the  defects 

*The  jurisdiction  of  these  courts  is  said  to  liave  been  obtained  by  en- 
croachment. 

"The  common  law  had  cognizance  in  Edward  First's  time  of  things  done 
upon  the  sea;  however,  afterwards  it  kept  its  limits  within  the  body  of  the 
county,  leaving  the  sea  to  the  Admiralty."  Selden's  notes  to  Fortescue, 
chap.  32.  He  cites  to  the  point  of  jurisdiction  of  the  common  law  courts> 
a  case  in  25th  year  of  Edward  First's  reign  (fol.  82),  with  several  other 
cases. 

"The  cognizance  of  wills  and  testaments  does  not  belong  by  common  right 
to  the  ecclesiastical  courts,  but  to  the  temporal  or  civil  jurisdiction,  yet  by  the 
custom  of  England  it  pertains  to  the  ecclesiastical  judges."  Hale's  History 
of  Common  Law,  p.  28.  The  jurisdiction  was  settled  in  Bracton's  time.  He 
says  :  "  Si  de  testamento  oriatur  contentio,  mforo  ccclesiastico  debet  placitum 
terminari,  quia  de  causa  testamentaria  (sicut  nee  de  causa  matrimoniali)  curia 
regia  se  non  introraittit."  Book  2,  p.  61.  It  is  even  recognized  at  an  earlier 
period  by  Glanville.  There  is  reason  to  believe  with  Dwarris  (on  Statutes,  p. 
759),  that  the  jurisdiction  of  the  ecclesiastical  courts  was  not  strictly  usurped, 
but  grew  out  of  positive  enactments  by  William  the  Conqueror.  Bentham, 
vol.  2,  p.  179,  states  forcibly  the  complexity  of  English  procedure. 


'20 

in  tlieir  administration  of  justice.  The  Court  of 
Chancery  grew  out  of  the  practice  of  appeahng  to  the 
king's  prerogative  for  redress  in  cases  where  the  posi- 
tive law  was  deficient.  The  king,  being  unable  per- 
sonally to  decide  the  cases  that  sprang  up,  heard  the 
cause  in  council  or  delegated  the  duty  to  his  officer, 
the  Chancellor,  then  always  an  ecclesiastic.  The 
Chancellor,  in  the  early  history  of  the  courts,  pro- 
ceeded without  adherence  to  rule.  He  would  direct 
the  parties  to  go  before  arbitrators,  or  he  would 
mediate  between  them  himself;  or  he  said  to  them 
that  he  would  talk  with  some  great  man  in  regard  to 
the  case.  Some  of  the  early  decrees  are  sufficiently 
singular.  Thus  in  one  case  the  court  say,  "Consi- 
dering the  honorable  dealings  of  the  plaintiff  during 
her  whole  course  of  life,  and  of  the  good  opinion 
had  of  her  counsel,  the  Court  thinks  well  of  her  title, 
notwithstanding  the  allegations  and  proofs  to  the 
contrary."  It  was  emphatically  a  court  oi  good  feeling. 
A  plaintiff  had  failed  in  his  suit,  and  had  been  con- 
demned to  pay  costs.  The  court  say,  "  Considering 
that  he  is  a  poor  boy,  in  very  simple  clothes,  and 
under  twelve  years,  the  costs  shall  be  remitted."  The 
costs  for  dismissing  a  bill  were  as  remarkable  as  any 
part  of  the  case — only  twenty  shillings.  As  the 
Court  advanced,  although  it  disregarded  form,  and 
took  for  its  guide  general  jurisprudence,  and  looked 


MR.    D  wight's    ADDEESS.  21 

for  substantial  justice,  it  became  bound  down  to  a  set 
of  rules  and  was  governed  by  precedents.  These 
must  now  be  studied  as  a  science,  and  are  not  to  be 
discovered,  as  many  suppose,  by  tlie  plain,  common 
sense  of  a  layman. 

Many  have  supposed  that  this  very  division  of 
remedies  among  separate  courts  has  conduced  to 
greater  precision  in  the  law,  and  that  different  rules 
can  be  adopted  therein  to  meet  the  public  con- 
venience and  promote  real  justice.  Without  enter- 
ing upon  that  question,  it  is  only  our  purpose  to 
show  how  much  the  labor  of  the  student  is  increased. 
Nothing  is  more  distressing  to  the  learner  in  juris- 
prudence, in  the  outset,  than  the  apparently  con- 
flicting views  taken  in  the  different  Courts.  In 
his  common  law  books  he  finds  it  positively  laid 
down  that  husband  and  wife  are  one,  that  they 
cannot  sue  each  other — that  they  cannot  contract 
together,  and  that  all  the  wife's  personal  property 
belongs  to  the  husband.  Having  treasm*ed  this 
up,  he  learns  in  his  equity  books,  that  they  may 
be  in  that  Court  two  closely  contending  litigants, 
pursuing  each  other  with  rancor,  not  necessarily 
veiled  even  under  the  forms  of  courtesy — that  they 
may  contract  together  in  a  proper  case,  and  that 
the  wife's  se][)arat6  property  does  not  belong  to  her 
husband.     In  his  common  law  books  he  learns  that 


22  Mil.   D wight's  address. 

a  mere  finder  of  goods  upon  land  has  no  lien  upon 
them,  even  if  lie  has  rescued  them  from  injury; 
in  the  Admiralty  books  he  learns  that  a  finding 
or  saving  at  sea,  or  under  the  jurisdiction  of  that 
Court,  is  "highly  meritorious,"  and  that  the' salvor 
is  carefully  protected  in  his  rights — so  that,  if  he 
should  save  a  sunken  or  abandoned  boat,  with  its 
contents,  in  the  Hudson  Eiver,  where  the  tide  ebbs 
and  flows,  he  would  have  a  lien  uj^on  the  property, 
which  would  be  recognized  even  in  the  common 
law  courts;  if  above  tide -water,  he  would  have  no 
lien  on  the  goods,  even  though  he  had  used  the  same 
exertioD,  and  perhaps  would  receive  no  compensation 
at  all,  unless  the  act  was  done  with  the  knowledge 
or  consent  of  the  owners.  In  studying  the  law  in 
regard  to  wills,  their  proof  and  validity,  he  finds 
that  a  decision  of  the  Surrogate  (who  represents  the 
Ecclesiastical  Courts  of  England  in  one  branch  of  their 
jurisdiction),  in  regard  to  the  validity  of  a  will  of 
personal  estate,  if  not  appealed  from,  or  reheard  in  a 
limited  period,  is  conclusive;  but  that,  if  the  will 
includes  both  real  and  personal  estate,  so  far  as  the 
real  estate  is  concerned,  an  appeal  from  the  Surro- 
gate's decision  is  wholly  unnecessary,  and  that  for  a 
long  series  of  years  the  question  may  be  raised  anew 
in  the  common  law  courts ;  or,  if  the  case  has  been 
appealed  from  the  Surrogate  to  the  highest  Court  on 


23 

one  branch  of  tlie  property,  and  has  been  decided 
after  the  appeal,  still  he  may  bring  a  new  suit  in 
regard  to  the  real  estate,  without  any  reference  to 
the  decision  of  the  appellate  Court.  Thus  it  may 
happen  that  on  the  same  will,  and  precisely  the 
same  state  of  facts,  it  may  be  decided  that  the  tes- 
tator is  sane  enough  to  make  a  will  as  far  as  his 
personal  property  is  concerned ;  and  that  he  is  so 
insane  that  he  cannot  make  the  will  when  the  real 
estate  is  considered.  The  only  possible  reason  for 
this  latter  theory  is  the  one  given  by  Ch.  Baron 
Yelverton,  in  the  House  of  Lords,*  that  the  cases 
are  heard  by  different  jurisdictions  !  The  anomaly 
does  not  exist  from  the  fault  of  the  judges,  for  they 
have  regarded  it  as  an  absurdity,  and  recommended 
its  abolition,  from  Lord  Hardwicke's  time  down  to 
the  present  day.f 

The  importance,  then,  of  studying  the  law  historic- 
ally cannot  be  too  strongly  inculcated.  Some  of  the 
leading  questions  of  our  time  have  been  fully  illus- 
trated only  by  the  industry  of  those  who  have  traced 

*  1  Ridgeway,  P.  C,  277. 

f  2  Atkins'  R.,  379.  There  are  some  early  decisions  on  this  point  in 
Croke's  Reports.  In  King  James  First's  reign,  an  effort  was  made  to  induce 
the  Courts  of  ordinary  jurisdiction  to  prohibit  the  ecclesiastical  judge  from 
hearing  the  case,  on  the  ground  that  his  decision  might  influence  a  jury, 
■when  the  cause  came  before  them.  Commissioners  appointed  in  the  time  of 
the  Commonwealth  recommended  the  abolition  of  this  branch  of  the  juris- 
diction of  the  Ecclesiastical  Courts. 


24  ME.   D Wight's    addeess. 

the  whole  course  of  legal  history.  For  instance,  the 
question,  in  what  cases  dispositions  by  will  to  chari- 
table uses  are  valid,  was  thus  carefully  examined  "  in 
the  Girard  College  case"  by  Mr.  Binney,  and  the 
means  furnished  to  the  Court  for  a  discussion  of  the 
true  doctrine  upon  that  involved  and  intricate  sub- 
ject. Adhuc  sub  judice  lis  est.  While,  then,  the 
student  is  mastering  the  present  law,  he  must  descend 
through  all  the  strata  of  centuries,  hammer  in  hand, 
till  he  comes  to  the  hard  gi'anite  of  the  feudal  system. 
It  would  in  general  be  useless  to  seek  to  get  any 
lower,  or  to  chip  away  much  of  its  substance.  He 
may  look  and  pass  on.  In  the  secondary  and  other 
formations  he  will  find  many  rare  things  of  value,  not 
merely  fit  to  be  laid  away  in  the  cabinets  of  the 
curious,  but  which  can  be  polished  and  fitted  for  imme- 
diate use. 

This  historical  examination  may  in  part  accomj)any, 
and  in  part  succeed,  the  systematic  study  of  the  pre- 
sent law.* 

It  is  another  prime  feature  of  the  common  law 

*  The  Roman  code  recognizes  the  necessity  of  an  historical  study  of  the 
previous  law.  Says  Gaius,  in  a  passage  quoted :  "Being  about  to  interpret 
the  laws,  I  must  go  back  to  the  very  origin  of  the  city,  not  because  I  wish  to 
make  my  commentaries  verbose,  but  because  I  observe  that  I  can  only  thus 
make  my  work  symmetrical.  For,  if  it  is  a  shameful  thing  for  an  advocate  to 
argue  a  cause  before  a  judge,  without  making  a  preliminary  statement  of  the 
facts,  how  much  more  disgraceful  it  is  for  one  who  pretends  to  interpret  the 
law,  to  undertake  the  task  without  an  historical  examination  of  it,  coming  to 
the  subject,  as  it  were,  with  unwashed  hands." 


ME.    DWIGHTS     ADDEESS.  25 

that  it  has  not  been  tlie  mere  deduction  of  theorists, 
reasoning  from  certain  admitted  principles,  but  that 
it  has  been  slowly  worked  out  by  actual  experience, 
announced  by  the  judges,  and  formed  into  binding 
precedents.  The  Anglo-Saxon  mind  cannot  admit 
the  idea  that  a  judge  may  originate  law.  He  can 
otAj  pro7ioimce  it,  and  that  after  argument,  and  when 
the  precise  point  is  involved.  Everything  else  is  a 
dictum — a  mere  saying — a  bright  scintillation,  per- 
haps, from  the  judicial  mind,  but  expiring  with  the 
occasion  which  gave  it  birth.  Thus,  in  developing 
the  law,  sharp  contests  have  arisen  over  tangible 
facts.  Judicial  discussions  have  been  animated  by 
the  fierce  passions  of  the  parties  to  the  suit.  The 
questions  of  slander  have  not  grown  out  of  hj^j^o- 
thetical  cases,  but  have  been  actual  charges,  en- 
venomed by  party  rancor  or  personal  enmity.  The 
ejectment  suits  were  not  mere  mooted  questions,  but 
arose  when  the  true  owners  had  been  turned  out  of 
possession  with  the  strong  hand.  Here,  under  color 
of  judicial  decision,  have  been  great  battles  fought. 
Here  have  been  struggles  for  wealth  and  power,  and 
contests  for  the  prizes  of  party  ambition.  All  that 
talent,  learning,  subtle  disquisition,  and  nice  analysis 
could  do,  has  been  done.  The  lawyers  have  at  times 
contended  so  desperately  as  to  arouse  the  monai'ch's 
sceptre.    Thus,  the  development  of  our  law  has  been 


26  ME.    D wight's  addkess. 

a  great  drama  of  centuries — a  romance  in  its  circum- 
stances— a  drama  in  its  action. 

As  a  general  rule,  where  the  government  was  not 
concerned,  and  in  later  times  where  it  was,  the  judges 
perceived  the  excitement  without  sharing  in  the  pas- 
sion, and  have  had  a  solemn  consciousness  that  they 
were  elaborating  rules  for  the  use  of  future  ages.  A 
high  English  authority,  Chief  Baron  Pollock,*  has 
recently  stated,  from  the  bench,  that  he  whom  we 
only  know  as  "  the  infamous  judge  Jeffries  "  was  no 
bad  judge  when  the  rights  of  the  king  were  not 
in  question.  Roger  North,  also,  in  his  admirable 
life  of  Lord  Keeper  Guilford,  tells  us  in  what  round 
terms  and  with  what  virtuous  indi2:nation  the  same 
judge  berated  from  the  bench  the  magistrates  of  the 
city  of  Bristol,  for  an  evil  practice  into  which  they 
had  fallen.-)- 

It  is  remarkable  with  what  slowness — intolerable 
slowness  it  would  be  in  our  time — the  early  judges 
proceeded  to  a  decision  on  an  imj)ortant  point — how 
they  had  it  argued  and  re-argued — ^through  how 
many  appeals  and  re-arguments  on  each  appeal  the 

*  36  English  Law  and  Equity  Reports,  p.  526. 

f  The  mayor  and  aldermen  of  Bristol  had  become  "judicial  kidnappers  of 
small  rogues  and  vagabonds,  whom  they  sent  to  America  and  sold."  Jeffries 
appears  to  hare  treated  these  dignitaries  with  great  severity.  North,  who 
was  no  friend  to  him,  says,  "  that  he  delighted  in  such  fair  opportunities  to 
rant."  See  a  graphic  account  of  the  incident  in  North's  Lives,  vol.  2,  p. 
24-2Y. 


27 


case  went,  how  long  they  kept  it  under  consideration, 
until  they,  perhaps,  forgot  the  argument,  while  the 
interests  of  the  client  were  lost  sight  of  in  their 
anxiety  not  to  jeopard  the  integrity  of  the  law. 
This  theory,  adopted  from  good  motives,  was  a  mis- 
taken one,  and  Avas  shorn  of  its  defects  at  the  opening 
of  the  career  of  Lord  Mansfield.  A  well-known  and 
competent  authority,  after  an  examination  of  all  the 
evidence,  is  clearly  of  the  opinion  that  Shakesj^eare 
was  once  a  clerk  in  a  lawyer's  office.  As  this  was 
during  the  period  spoken  of,  if  he  copied  all  the 
papers,  and  waited  on  the  arguments,  he  had  good 
reason  to  know  what  was  meant  by  "the  law's 
delay."^ 

The  great  father  of  modern  philosophy,  profoundly 
versed  in  our  jurisprudence,  though  disliking  profes- 
sional practice,  adhered  closely  to  precedent,  directing 
Justice  Hatton,  when  he  was  made  Judge,  to  draw 
his  learning  out  of  his  books,  and  not  out  of  his  brain 
It  would  be  interesting  to  trace  how  Lord  Bacon's 
legal  studies  acted  on  his  philosophical  speculations, 
and  how  much  his  caution,  in  reaching  conclusions  in 
philosophy,  depended  on  the  care  which  he  used  in 

*  This  delay  is  not  peculiar  to  English  jurisprudence.  (Se>&  Fortescue  de 
Laudibus,  127.)  He  says:  "While  I  was  lately  abiding  in  Pans,  mine  host 
showed  me  his  process  in  writing,  which,  in  the  Court  of  Parliament,  he  has 
followed  eight  years,  to  recover  eight  pence  sterling,  and  he  was  in  no  hope  to 
obtain  judgment  iu  eight  years  more.  I  also  knew  other  cases  like  unto 
these." — Old  Translation. 


28  ME.   dwigiit's  addeess. 

sifting  evidence,  and  in  weighing  conclusions  at  the 
bar. 

By  this  process  the  municipal  law  of  England  has 
gained  a  steady  and  a  fixed  character.    The  principle, 
having  been  settled  after  the  most  exhaustive  discus- 
sion, and  the  most  careful  examination,  assumes  the 
binding  force  of  a  precedent.     Judges  have  sometimes 
struggled  in  a  mental  conflict  between  precedent  and 
principle.     Lord  Mansfield  used  to  say  that  he  ought 
to  be  drawn  placed  between  the  two,  like  Garrick 
between  Tragedy  and  Comedy.     And  yet  this  very 
Judge,  in  a  great  case,  in  which  there  was  a  difference 
of  opinion   on   the  bench,  says,    "This  is  the  fii'st 
instance  of  a  final  difference  since  I  have  been  here 
— thirteen  years.     That  unanimity  could  never  have 
hapj)ened  if  we  did  not  communicate  our  sentiments 
with  great  freedom;  if  we  did  not  form  our  judg- 
ments without  prepossessions ;  if  we  were  not  open  to 
conviction,  and  ready  to  yield  to  each  other's  rea- 
sons."     Althouo-h   it   is   usual  to   account   for  this 
unanimity   by   stating  that   the   master  intellect  of 
Lord  Mansfield  overshadowed  the  other  judges,  yet, 
when  we  consider  their  ability*  and  this  declaration, 
it  is  fair  to  presume  otherwise. 

How  diiferent  is  this  from  the  condition  of  parts 
of  the  Koman  law.     A  distinguished  jurist  of  our 

*  2  Campbell's  Ch.  Justices,  p.  395. 


29 


own  country,  Judge  Story,  lias  collected  the  opinions 
of  tlie  leading  civilians  on  the  subject  of  the  conflict 
of  laws.  The  wide  and  comprehensive  research  of 
the  author  has  only  displayed  its  uselessness,  for,  from 
the  discordant  views  of  the  writers  cited,  scarcely 
any  intelligible  principle  can  be  extracted.  Instead  of 
presenting  us  the  conflict  of  laws,  our  ears  are  stunned 
by  the  conflict  of  opinions.  Of  com^se,  large  portions 
of  that  law  are  deflnite  and  certain,  but  the  fact  that, 
since  its  codification  by  Justinian,  its  progress  as  a 
system  has  been  largely  due  to  text  writers,  reason- 
ing without  an  actual  case  discussed  before  them, 
while  the  progress  of  the  common  law  has  been 
mainly  due  to  judicial  decision,  based  on  actual  cases 
and  discussions,  forms  a  marked  difference  in  the 
two  theories  of  jurisprudence.  Countries  governed 
by  the  civil  law  have  felt  the  difficulty  of  this  theory. 
Spain  resolved,  in  1713,  that  it  was  a  great  inconve- 
nience that  her  tribunals  had  followed  foreign  jurists 
and  authors,  to  the  depreciation  of  her  own,  and  for- 
bade the  quoting  of  foreign  opinions  in  antagonism 
to  the  views  of  Spanish  jurists.  What  was  this  but 
establishing  in  an  indii'ect  way  the  rule  of  foUo's\'ing 
precedents.* 

*  See  17  Martin,  Louisiana  Rep.,  583.  As  to  the  similar  condition  of  the 
Roman  law  before  the  Justinian  Code,  see  Savigny's  History  of  Roman  Juris- 
prudence, vol.  1,  page  8.  He  says:  "The  great  Roman  jurists  entertained, 
on  many  subjects,  very  different  opinions,  and  who  possessed  the  power  of 
reconciling  these  differences  by  a  judgment  of  higher  authority  ?    The  decision 


30  MR.   dwight's   address. 

When  law  is  developed  in  tlie  English  mode,  it 
is  not  theoretical — an  object  of  speculation  or  criti- 
cism ;  it  is  practical,  and  becomes  at  once  a  rule  of 
action.  It  will  be  generated  slowly  as  cases  arise, 
and  may  be  submitted  to  the  tests  of  experience.  If 
it  appears  that  a  wrong  step  is  taken,  it  can  be 
retraced,  and  the  mischief  corrected  before  the  vice 
has  permeated  the  entire  system.  It  is  known  that 
Lord  Mansfield  almost  created  our  commercial  law, 
and  the  law  of  insurance.  It  is  a  sao^acious  remark 
of  Lord  Campbell's,  that  when  the  former  had  to 
grapple  with  the  great  questions  that  came  before 
him,  instead  of  proceeding  by  legislation,  and  attempt- 
ing to  codify,  he  wisely  thought  it  more  according  to 
the  genius  of  English  institutions  to  introduce  im- 
provements, gradually,  by  way  of  judicial  decision, 
while,  he  not  only  settled  the  particular  case,  but 
established  with  precision,  and  on  sound  principles,  a 
rule  to  be  afterwards  quoted  and  recognized  as  gov- 
erning similar  cases. 

of  lawsuits  must  have  been  exceedingly  difficult,  or  unsteady  and  arbitrary. 
The  Emperor  Valentinian  regulated  the  matter  in  the  West  by  an  imperial 
decree ;  the  principle  was  afterwards  adopted  in  the  East  by  the  Theodosian 
Code.  By  the  rule  then  adopted,  no  treatises  were  to  be  cited  except  those 
of  five  jurists,  who  were  named,  viz. :  Ulpian,  Papinian,  Paulus,  Caius  and 
Modestiuus."  A  code  is  almost  a  necessary  refuge  where  law  is  developed  by 
mere  thinkers ;  the  idea  of  an  authoritative  exposition  of  principles  must  be 
carried  out  either  by  judicial  decision  or  by  legislation.  The  present  very 
loose  practice  of  reporting  cases,  both  in  this  country  and  in  England,  threatens 
to  introduce  into  the  expositions  of  the  common  law  the  same  vice  of  un- 
ortainty.  If  reporting  is  not  regulated  by  legislation,  we  shall  be  driven  to  a 
code. 


ME.    DAVIGHTS    ADDEESS.  31 

Doubtless,  the  judges  have  sometimes  assumed  the 
duty  of  the  legislator,  but  even  then  judge-made  law 
is  better  than  text  law.  In  this  manner  the  common 
law  has  been  accommodated  to  the  advancing  spirit 
of  each  age.  This  has  been  especially  true  in  the  law 
of  personal  property,  contracts  and  commercial  law. 
The  spirit  of  the  old  scholastic  philosophy  had  so 
pervaded  the  law  of  real  estate  that  few  organic 
changes  could  be  made.  'Jhe  law  of  fixtm-es,  how- 
ever, is  an  instance  of  a  modification  made  to  meet 
the  changing  circumstances  of  the  times,  while  a 
court  of  equity,  "  that  rib,"  as  Bentham  says,  "  taken 
out  of  the  side  of  the  law  in  the  dark  ages,"  the 
younger,  and  in  some  respects  the  comelier  sister,  has 
so  treated  it,  in  the  law  of  partnership  and  otherwise, 
as  to  meet  the  exigencies  of  an  advancing  trade  and 
commerce. 

If  any  new  product  or  invention  is  introduced,  the 
common  law  establishes  rules  in  analogy  to  similar 
cases.*  Thus,  it  attaches  itself  to  the  railroad,  and 
soon  there  are  worked  out  bulky  volumes  on  the  com- 
mon law  in  regard  to  railroads.  It  applies  itself 
to  the  electric  telegraph,  and  adds  that  subtle  and 
incorporeal    agent,    electricity,  the    very   Ariel    of 

*  This  theory  is  as  old  as  the  law  itself.  Says  Bracton,  "  If  any  new  and 
unusual  case  arises,  such  an  one  as  has  not  before  arisen  in  the  Kingdom,  let 
it  be  adjudged  according  to  analogous  cases,  if  any  exist,  for  it  is  good  to  pro- 
ceed a  similibus  ad  similia."    Chap.  2. 


32  JiK.  dwight's  addeess. 

jurisprudence,  to  tlie  list  of  common  carriers,  laying- 
down  the  rules  for  its  guidance  in  the  transmission  of 
messages*  In  this  manner  the  law  is  everywhere 
present,  either  active,  or,  if  dormant,  ready  to  spring 
into  life  when  the  occasion  arises. 

Side  by  side  with  the  study  of  the  history  and 
principles  of  law,  you  are  also  to  examine  legislation 
and  its  history.  The  statute-making  power  has  been, 
in  modern  times,  continually  on  the  alert,  changing 
the  rules  of  the  common  law,  and  adopting  new  pro- 
visions to  meet  the  altered  conditions  of  society.  It 
will  be  necessary  to  examine  the  principles  that  guide 
the  courts  in  the  interpretation  and  construction  of 
statutes,  especially  in  case  of  their  conflict  with 
the  fundamental  law  of  the  State  or  of  the  United 
States.  Legislation  has  a  history  which  has  also  to 
be  studied,  for  one  statute  cannot  be  understood 
without  the  examination  of  others  on  the  same  sub- 
ject, and  sometimes  not  without  a  more  or  less  minute 
examination  of  the  general  history  of  legislation. 
The  knowledge  of  this  enacted  law  grows  in  import- 
ance every  year. 

In  our  own  State,  we  have  made  great  changes  in 
the  common  law,  especially  regarding  real  estate, 
while,  as  every  person  knows,  we  have  abolished  the 
old  forms  of  procedure.      It   may  be  remarked  in 

*  33  English  Law  and  Equity  Reports,  p.  180. 


33 


passing,  that  by  a  singular  coincidence  we  have  gone 
through  with  the  same  process,  in  respect  to  pleadings, 
as  the  Romans.  They  had  technical  forms  of  actions ; 
so  had  we.  They  had  actions,  analogous  to  our 
chancery  suits.  They  consolidated  the  two,  and 
proceeded  without  form.  This  we  have  done.  In 
proceeding  without  form,  they  found,  after  a  long 
experience,  that  it  was  necessary  to  pass  a  rule  which 
we  have  not  yet  adopted.  The  Justinian  code 
required  that  a  case  should  not  be  in  court  more  than 
three  years.  The  reason  given  was,  that  suits  were 
likely  to  outlast  the  life  of  man,  and  to  become 
immortal.  We  may  yet  iiud  it  necessary  to  complete 
the  parallel,  by  adopting  a  similar  provision. 

By  constitutional  ]3rovisions  from  the  beginning 
such  parts  of  the  common  law  and  amendatory 
statutes  as  were  in  use  during  our  colonial  j^eriod, 
down  to  April,  1775,  were  adopted  as  the  law  of  this 
State.  Taking,  as  we  did,  an  entii*e  system  of  law 
from  another  country,  it  is  surprising  that  it  could 
be  so  readily  adapted  to  our  institutions.  What- 
ever we  found  unsuited  to  our  condition,  we  rejected, 
either  by  judicial  decision  or  by  legislation.  Thus 
we  discarded  the  English  theory  of  the  descent 
of  land  to  the  eldest  son.  So  the  theory  of 
ancient  lights  or  windows,  if  it  ever  had  any  solid 
foundation  in  the  law,  to  the    extent   to   which  it 

3 


34  MK.    DWiailT's    ADDRESS. 

was  carried,  was  rejected  or  modified,  so  as  to  suit 
our  circumstances.  So  we  dealt  with  the  ecclesiastic- 
al law,  in  regard  to  the  effect  of  future  promises  to 
marry,  and  with  some  of  the  rules  of  law  in  regard 
to  the  dead.  A  branch  of  the  latter  doctrine  has 
been  recently  shown,  with  elaborate  research,  to  rest 
on  false  theories,  fanciful  etymologies,  and  in  its 
details  to  be  wholly  alien  to  our  most  cherished 
sentiments,  and  was  pronounced  no  part  of  our  law.''^' 
How  readily  will  this  conclusion  be  acquiesced  in, 
when  we  learn  that,  in  this  last  year,  it  was  decided 
in  the  high  Court  of  Criminal  Appeal,  in  England,f 
that  a  son  might,  by  the  common  law,  be  indicted 
and  convicted  of  a  misdemeanor,  who  openly,  and  in 
the  light  of  day,  removed  from  a  dissenting  burial- 
ground  the  remains  of  his  own  father,  although  he  was 
prompted  by  the  most  filial  sentiments,  and  although 
he  had  reason  to  believe  that  the  trustees  of  the 
cemetery  were  about  to  devote  the  ground  to  secular 
purposes.  The  son  had  not  asked  the  j)ermission  of 
the  trustees.  The  judge,  who  pronounced  the  opinion, 
said,  "  the  common  law  recognizes  no  property  in  the 
remains  of  the  dead."  He  then  gave  a  singular 
reason  for  his  decision,  stating  that  if  the  conviction 
were    not   sustained,  there  would    be   no    mode   of 

*  See  Report  of  Hon.  S.  B.  Ruggles,  4  Bradford's  Surrogate's  Reports,  503. 
f  40  E.  L.  E.,  581,  Regioa  vs.  Sharp. 


ME.  D wight's  address.  35 

protecting  tlie  remains  of  deceased  persons,  interred 
in  the  burial-grounds  of  dissenters.  As  if  the  best 
way  to  protect  them  was  not  to  decide  that  the  son 
licid  a  property  in  the  remains  of  a  deceased  parent. 
Be  it  said,  to  the  honor  of  the  Bench,  that  they 
exercised  a  humane  discretion  in  inflicting  only  a 
nominal  fine.  Doctrines  like  these  we  ought  to  reject 
at  once,  without  waiting  for  legislative  action.  They 
are  the  result  of  circumstances  peculiar  to  English 
history,  and  ought  to  be  regarded  as  no  part  of  our 
law.  It  is  evident,  too,  to  any  one,  who  watches  the 
development  of  the  law  of  the  two  nations,  and  the 
course  of  legislation,  that  their  jurisprudence  diverges 
from  the  common  point  more  widely  every  year. 

The  common  law  is  to  be  learned  in  a  great  variety 
of  reports,  and  m  some  authoritative  treatises.  Among 
the  good  cases  will  be  found  many  that  are  mistaken 
and  worthless.  They  were  either  badly  argued  or 
miserably  rej^orted,  or  the  "  Judge  mistook  rapidity 
for  the  due  administration  of  justice,  and  made  de- 
crees which  ought  to  serve  not  as  examples  to  be  imi- 
tated, but  as  land-marks  to  be  avoided  by  all  future 
judges."  Many  of  these  cases  have  been  explained, 
limited,  criticised,  or  overruled  in  other  decisions. 
They  are  declared  counterfeit  coin ;  but  the  inexj^e- 
rienced  eye  is  in  great  danger  of  receiving  them  as 
genuine.     Other  cases  have   their   authority  dimin- 


36 


ished,  because  a  bare  majority  of  the  judges  con- 
curred in  the  decision,  although,  as  it  has  been 
happily  expressed  by  Justice  Coleridge,  late  of  the 
Queen's  Bench,  English  judges,  as  a  whole,  "have 
had  so  much  of  general  agreement  as  served  to  give 
authority  to  their  judgments,  with  so  much  occasional 
difference  as  served  to  show  their  individual  responsi- 
l)ility  and  independence."  This  crowd  of  volumes  urges 
upon  us  a  systematic  study  of  the  law.  One  must  be 
guided  by  the  principle  rather  than  by  the  case.  Even 
abolished  law  must  be  studied  carefully,  both  because 
it  governs  all  acts  done  while  it  was  in  force,  and 
because  it  is  often  explanatory  of  what  is  introduced 
in  its  place.  After  Chancellor  Kent  had  given  in  his 
commentaries  an  extended  discussion  of  a  legal  rule 
known  among  lawyers  as  "  the  rule  in  Shelley's  case," 
he  appended  a  note  to  his  text,  in  which  he  spoke  in 
eloquent  language  of  the  fact  that  this  rule  was  abol- 
ished by  our  Revised  Statutes,  and  remarked  that,  so 
far  as  this  State  is  concerned,  all  he  had  wiitten  is  but 
a  monument  to  the  memory  of  departed  learning. 
Yet,  since  that  note  was  written,  scores  of  cases  have 
occurred  in  our  courts,  in  which  the  abolished  rule 
was  examined,  with  its  qualifications  and  limitations. 
Every  real  estate  lawyer  meets  it,  from  time  to  time, 
in  deducing  a  chain  of  title  to  land.  The  fact  that  it 
exists  in  full  force  in  other  States  makes  it  necessary 


MPw  dwight's  addeess.  si 

to  know  it.  Changes  in  tlie  law  only  complicate  tlie 
lawyer's  studies.  He  must  be  alike  familiar  with  the 
old  rule  and  the  new.  Janus-faced,  he  must  look 
both  forward  and  backward.  Notwithstanding  the 
vital  alterations  that  have  been  made  in  the  law  of 
husband  and  wife,  and  the  more  comprehensive 
changes  that  are  threatened,  no  competent  lawyer 
supposes  that  a  full  knowledge  of  the  old  rules  will 
not  be  necessary  at  least  during  this  generation. 

Thus,  in  free  countries,  like  England  and  the  United 
States,  the  studies  of  the  ripest  jurist  are  never  at  an 
end ;  rather,  just  beginning.  A  great  German  poet, 
if  he  had  lived  here,  would  not  have  made  one  of 
his  well-known  characters  say  that  legal  rights  are 
transmitted  from  grandsire  to  grandson,  like  an 
hereditary  disease.^*  They  seem,  sometimes,  more 
like  the  fabrics  of  which  the  English  poet  sjDeakSy 
"they  rise  like  an  exhalation." 

We  will  be  asked  if  all  this  complexity  of  laws  be 
necessary?  We  reply,  so  long  as  the  variety  of 
human  events  is  so  great;  while  men  seek  wealth 
with  energy,  and  compass  sea  and  land  to  obtain  it ; 
while  pride  and  vanity  influence  testators;  while 
trust   and   confidence   are   reposed   by  man   in   his 

*  "  Es  erben  sich  Gesetz  und  Rechte 
Wie  eine  ew'ge  Krankheit  fort 
Sie  schleppen  von  Geschlccht  sich  zum  Geschlechte 
Und  rucken  sacht  von  Ort  zu  Ort." — Goethk's  Faust. 


''V,iririO 


38  MR.  davight's  address. 

fellow ;  while  fraud  assumes  its  Protean  shapes ;  while 
the  family  exists,  and  absolute  rights  are  regarded,  so 
long  will  jurisprudence  be  obliged  to  adapt  itself  to 
these  important  facts  in  all  their  details.  The  com- 
plexity and  intricacy  of  legal  j)rinciples,  I  do  not 
say  of  legal  forms,  is  the  price  we  pay  for  our  free, 
advancing  and  refined  state  of  society — an  intricacy 
only  to  grow  more  intricate,  and  a  complexity  to 
grow  more  complicated.  Yet  it  is  safe  to  say  that  he, 
who  is  thoroughly  familiar  with  the  fundamental 
principles  of  law,  has  the  thread  in  his  hand  by 
which  he  can  be  guided  through  the  labyrinth.  The 
science  of  pure  mathematics  has  its  settled  and  deter- 
mined principles,  which  can  be  mastered  by  patience 
and  application;  when  these  principles  are  applied 
to  celestial  mechanism  and  the  perturbations  of  the 
planets,  the  problems  which  gi'ow  up  need  the  intel- 
lect of  a  La  Place  and  a  Plana  to  compass  them.  The 
principles  are  few ;  the  objects  to  which  tliey  can  be 
applied  are  almost  infinite.  Yet,  through  all  these 
complicated  movements  and  action  and  reaction  of 
matter,  the  master  mind  goes  with  certainty,  sound- 
ing the  abysses  with  his  well-known  principles, 
and  carrying  the  torch  of  exploration  steadily  before 
him.  The  mechanism  of  the  heavens  is  none  the  less 
scientific,  because  it  is  difiicult  in  some  cases  to  apply 
right  principles  in  the  examination  of  its  intricacies. 


MR.  dwight's  address.  89 

Yet  liow  many  regard  jiiris]3riidence,  with  the  same 
difficulties  to  contend  with,  as  having  little  claim  to 
a  scientific  character !  Goethe  opens  his  great  tragedy 
of  Faust  by  introducing  the  future  arch-magician  in 
a  rhapsody  on  the  worthlessness  of  law  and  the  sister 
sciences.     He  says: 

•'  I've  now,  alas !  Philosophy, 
Medicine  and  Jurisprudence  too, 
And,  to  my  cost,  Theology, 
With  ardent  labor  studied  through. 
And  here  I  stand,  with  all  my  lore, 
Poor  fool !  no  wiser  than  before  ; 
Master,  ay.  Doctor,  styled  indeed, 
Already  these  ten  years  I  lead 
Up,  down,  across,  and  to  and  fro. 
My  pupils  by  the  nose,  and  learn 
That  we,  in  truth,  can  nothing  know."  * 

After  more  to  the  same  purpose,  and  a  deter- 
mination to  look  into  the  very  essence  of  things,  and 
no  more  to  busy  himself  with  words,  he  abandons 
these  sciences  in  despair,  betakes  himself  to  magic  and 
kindred  subjects,  and  ends,  as  was  natural,  in  a  close 
and  altogether  disagreeable  intimacy  with  Mephis- 
topheles. 

There  is  a  floating  opinion  somewhat  similar  to 
this  in  the  minds  of  many,  the  more  difficult  to  meet, 
because  undefined,  that  the  science  of  law  is  no  sci- 
ence, but  that  it  is  mere  liap-hazard  and  chance.  If 
this  be  so,  it  is  not  due  to  the  subject  itself,  but  to 
the  way  in  which  it   is   administered.     No   science 

*  Swanwick's  Translation. 


40  MK.  dwigiit's  address. 

known  among  men  is  more  strictly  deductive  than 
the  science  of  a  true  Jurisprudence.  If  the  conclu- 
sions arrived  at  be  uncertain  and  unreliable,  it  is  due 
to  the  bar  who  argue,  or  to  the  Judiciary  who  decide, 
the  cases  as  they  arise.  If  the  charge  be  true  against 
them,  it  only  shows  the  necessity  of  a  more  thorough 
apprehension  of  legal  principles.  If  the  bar  be  igno- 
rant, no  amount  of  learning  on  the  part  of  the 
Judiciary  will  save  the  science  fi'om  the  infusion  of 
false  principles ;  if  the  bar  be  highly  educated  and 
accomplished,  they  will,  in  a  measure,  elevate  even 
an  incompetent  Judiciary.  The  argument  only  goes  to 
show  that,  unless  juries  are  honest  and  intelligent, 
judges  thoroughly  trained  in  their  profession,  and 
lawyers  honorable,  studious  and  learned,  the  con- 
ditions necessary  to  a  scientific  deduction  from  legal 
principles  will  not  be  found  to  exist. 

It  has  been  the  good  fortune  of  the  English  law 
that  at  no  time,  in  its  more  naodern  history,  have 
there  been  wanting  great  minds  to  aid  in  its  devel- 
opment. * 

*  In  the  early  history  of  England  we  find  it  said  that  foolish  and  unlearned 
persons  ascended  the  seat  of  judgment  before  they  had  learned  law.  The  old 
writer  before  quoted  utters  a  solemn  note  of  warning  to  this  class  of  judges  : 
"Let  no  silly  and  unlearned  person  dare  to  ascend  the  seat  of  judgment, 
which  is  like  the  throne  of  God,  lest  he  shall  put  light  for  darkness  and  dark- 
ness for  light ;  lest,  with  untaught  hand,  after  the  manner  of  a  madman,  he 
strike  the  innocent  with  the  sword,  and  free  the  guilty,  and  lest  he  fall  from 
his  lofty  seat  as  from  the  height  of  heaven,  like  one  who  began  to  fly  before 
hia  wings  were  fledged ;  and  let  every  judge  beware  how,  in  making  a  per- 


ME.  dwight's  address.  41 

We  can  almost  trace  the  illustrious  line,  from  father 
to  son ;  the  predecessor  training,  at  all  events,  exer- 
cising a  powerful  influence  over,  his  successors.  Thus 
we  see  the  chief  justices  mounting  through  every  grade 
of  their  profession,  to  the  attorney -generalship,  and 
thence  to  the  high  seat  of  justice,  which  they  do  not 
abandon,  except  through  infirmity  or  with  their 
lives.  Thoroughly  familiar  with  every  phase  of  legal 
practice,  they  bring  all  the  multiform  experience  of 
the  bar  to  a  symmetrical  result  upon  the  bench. 
Having,  previous  to  their  elevation,  practiced  before 
men  of  the  highest  judicial  cultivation,  they  became 
insensibly  moulded  after  their  pattern,  so  as  to  pre- 
sent a  general  likeness.  '"'"Fades  non  omnibus  una^ 
nee  diver sa  tameny  Said  Lord  Mansfield :  "  If  I  have 
had  any  success,  it  is  owing  to  the  gTeat  mind  who 
presided  in  our  highest  court  of  judicature,  the  whole 
time  I  attended  at  the  bar.  It  was  impossible  to 
attend  him,  to  sit  under  him  every  day,  without 
catching  some  beams  of  his  light."  In  later  days 
there  has  been  a  series  of  thorough  jurists  on  the 
bench,  so  that  even  the  side  judges  have  been  some- 
times men  of  the  most  distinguished  ability,  as,  for 
instance.  Baron  Parke,  who  has  shed  such  a  lustre 

verse  and  illegal  judgment,  obtained  from  him  by  entreaty  or  money,  he  may 
prepare  for  himself,  instead  of  a  slight  temporal  advantage,  the  sadness  of  an 
eternal  mourning."  Bracton,  book  1,  chap.  2.  It  is  very  noteworthy  how 
closely  this  writer  connects,  in  a  variety  of  passages,  human  law  with  the  "  law 
eternal." 


42  ME.  D wight's  address. 

upon  the  Court  of  Exchequer  in  our  time,  and  whose 
name  must  be  known  to  posterity  as  one  of  the  ablest 
jurists  of  the  age.  To  how  many  of  these  could 
Justice  Buller's  remark  be  applied — "that  principles 
were  explained  and  enlarged  upon,  until  men  were 
lost  in  amazement  at  the  strength  and  the  stretch  of 
the  human  understanding?"  In  our  own  country, 
similar  names  can  be  mentioned  of  the  illustrious 
dead,  and  of  the  no  less  illustrious  living.  Among 
the  latter,  without  referring  to  any  of  our  own  citi- 
zens, I  may  be  pardoned  in  alluding  to  an  eminent 
judge,  full  of  years  and  honors,  who  has  achieved 
for  the  Supreme  Judicial  Court  of  Massachusetts 
what  Baron  Parke  has  accomplished  for  the  Court 
of  Exchequer  in  the  mother  country.  Standing 
here,  how  could  I  forget  one  who  once  occupied 
the  chair  of  jurisprudence  in  this  venerable  in- 
stitution? It  is  not  the  least  of  its  glories,  to  have 
numbered  one  of  the  principal  authors  of  the  Feder- 
alist among  its  students,  and  a  great  commentator 
on  American  law  among  its  lecturers. 

It  is  an  interesting  fact  that  in  the  development  of 
this  science,  no  jealousy  or  narrow-mindedness  has 
been  displayed  by  its  expositors.  The  leading 
cases  in  our  reports  are  cited  in  England  with 
all  the  respect  due  to  them,  and  not  unfrequently 
influence  the  decision.     The  English  Court  of  Ex- 


ME.  dwight's  address.  43 

chequer  recently  abandoned  a  position  previously 
taken  by  tlieir  own  antliorities,  from  a  conviction 
of  the  unanswerable  argument  of  one  of  our  New 
York  judges.  Our  own  courts  are  quite  in  tlie  habit 
of  following  recent  English  decisions  in  point,  some- 
times even  without  entire  confidence  in  their  sound- 
ness. This  part  of  our  subject  may  be  fitly  closed  by 
the  words  of  Hooker — "  It  is  easier  a  great  deal  for 
men  to  be  taught  l^y  law  what  they  ought  to  do,  than 
instructed  how  to  judge  as  they  should  do  of  law; 
for  the  wisest  are  ready  to  acknowledge  that  soundly 
to  judge  of  law  is  the  weightiest  thing  a  man  can 
take  upon  him." 

May  we  not  hope  that  out  of  these  various  mate- 
rials a  code  may  arise,  framed  by  profound  lawyers, 
and  submitted  for  suggestion  and  approval  not  to  a 
despotic  emperor,  but  to  the  best  legal  thinkers  of  an 
enlightened  people ;  a  code  whose  authors  shall  not 
assume  to  originate  law,  but  are  willing  to  perform 
the  office  of  aggregation,  selection  and  systematic 
arrangement,  and  who  from  the  vast  material  will 
drop  the  overruled  cases  and  will  settle  those  that 
conflict;  a  code  which  shall  include  our  pei*sonal  rights, 
our  domestic  obligations,  our  rights  of  property,  and, 
above  all,  those  delicate  rules  of  the  criminal  law, 
framed  for  the  doul)le  purpose  of  protecting  society 
and  of  preserving  the  rights  of  the  prisoner ;  a  code 


44  MR.  dwight's  address. 

wliicli,  while  no  valuable  line  of  the  rugged  com- 
mon law  is  softened,  and  not  a  jot  of  its  indej)endence 
abated,  is  adorned  with  the  jewels  of  the  Roman 
law,  and  contains  within  itself  all  the  best  legal  ex- 
perience of  the  ages ;  a  code  which  shall  show  the 
progress  of  judicial  thought  by  a  comprehensive 
sketch  of  the  legal  history  of  England  and  America, 
drawn  by  a  master-hand.  Thus,  when  the  gold,  the 
silver,  the  wood  and  the  iron  are  gathered  together, 
and  the  rubbish  is  burned,  a  fair  and  symmetrical 
temple  may  arise  where  Themis  herself  may  sit  and 
preside  unseen,  realizing  in  some  measure  the  charac- 
ter given  her  by  the  ancients — the  true  daughter  of 
heaven  and  earth. 

But  law  is  not  to  1>e  understood  merely  as  a 
science.  It  is  also  to  be  practiced  as  an  art.  The 
process  of  presenting  a  case  to  the  judge  and  jury  is 
very  different  from  that  of  apprehending  it  when 
engaged  in  its  study.  You  were  then  to  be  convinced 
yourself.  You  are  now  to  convince  others.  You 
are  to  act  the  part  of  an  expositor,  of  a  teacher,  with 
much  suspicion  as  to  the  honesty  of  your  motives. 
As  far  as  you  confine  yourself  to  the  truth,  you 
combine  those  two  points  which  are  regarded  in  all 
other  sciences  as  so  difficult  of  combination — the  cha- 
racter of  an  original  thinker  and  investigator  with 
that  of  an  expositor.     This  exposition  must  often  be 


MR.  D wight's  address.  45 

made  witli  all  tlie  clearness  of  expression  and  finish 
of  rhetoric  of  which  you  are  master ;  with  coolness 
of  judgment  and  versatility  of  action.  You  may  have 
an  antagonist  sophistical  in  reasoning,  ingenious  in 
technicalities,  and  unscrupulous  in  the  use  of  his 
advantages.  You  may  have  a  judge  prejudiced 
against  you  or  your  case,  irritable  in  temper,  discour- 
teous in  interruption,  or  impatient  of  argument.  You 
may  meet  a  jury  incapable  of  appreciating  your  fine- 
spun reasoning,  or  even  tampered  with  by  the  oppo- 
site party.  The  case  which  you  had  constructed,  as 
you  thought,  so  admirably,  while  in  the  seclusion  of 
your  office,  falls  to  pieces  under  the  batteries  of  your 
antagonist,  or  is  blown  away,  like  gossamer,  and 
remorselessly  by  the  judge.  The  cases  on  which  you 
rested  are  overruled  or  doubted ;  they  were  decided 
in  another  State,  and  are  not  necessarily  followed ;  or 
the  law  is  good,  but  the  judge  thinks  that  they  do 
not  apply  to  the  matter  in  hand ;  or  the  evidence  on 
which  you  depended  does  not  support  your  view  of 
the  cause.  If  the  decision  is  rendered  in  your  favor, 
you  win  it  in  the  face  of  the  most  determined  oppo- 
sition. In  the  close  hand-to-hand  struggle  at  the  bar 
you  must  have  real  muscle,  flexibility  of  motion,  and 
an  unyielding  T\nll.  You  must  anticipate  sophisms, 
and  kill  them  in  the  germ,  and  before  they  have  time 
to  grow.     As  was  the  test  applied  to  the  old  knights 


46  MK.  dwight's  address. 

in  tlie  days  of  cliivaliy,  you  can  only  prove  your  fit- 
ness for  tlie  work  by  parrying,  tliough  in  the  dark, 
all  attacks,  and  meeting  all  surprises,  from  whatever 
quarter  they  may  arise. 

How  shall  such  a  profession,  requiring  for  its  suc- 
cessful practice  such  different  qualities  and  training, 
be  acquired  ?  Tlie  full  answer  to  this  question  is  not 
altogether  easy,  and  different  minds  may  answer  it  in 
different  modes.  In  general,  this  may  be  said,  that, 
for  the  student,  the  acquisition  of  the  principles  of  a 
science  may  safely  precede  its  practice  as  an  art.  In 
the  haste  of  office  business,  in  the  varied  labors 
imposed  upon  a  lawyer  in  full  practice,  in  one  of  our 
large  commercial  cities,  but  little  leisure  Avill  be  found 
for  the  instruction  of  students.  The  carefully-drawn 
paper,  which  they  are  left  to  copy,  is  not  understood. 
The  work  is  done  mechanically,  and  perhaps  without 
more  reflection  than  the  press  gives,  which,  in  the 
opposite  corner  of  the  office,  copies  the  letter  uner- 
ringly for  the  employer.  Let  the  student  have  gone 
over  the  principles  of  the  science  carefully  and 
understandingly,  with  a  full  explanation  of  technical 
terms,  and  all  the  assistance  and  stimulus  which  a 
competent  instructor  can  give,  that,  which  before  was 
dull  and  undesired,  is  then  clothed  with  life  and 
interest.  On  the  other  hand,  the  practice  of  gaining 
the  whole  of  one's  knowledo^e  throusrh  the  medium  of 


MR.  dwight's  address.  47 

copying  and  the  details  of  office  business,  seems  to 
invert  the  usual  order  of  instruction  used  in  the  other 
sciences,  and  to  place  that  first  which  ought  to  be 
placed  last.  Although  some  may  have  the  power, 
from  natural  capacity,  to  rise  to  success  through  these 
difficulties,  thousands  drop  by  the  way  like  untimely 
fruit,  or  lead  only  a  sickly  and  a  worthless  life.  It  is 
certainly  no  argument  in  favor  of  a  consumptive  cli- 
mate, that,  though  thousands  may  die,  a  few  have 
lungs  hardy  enough  to  resist  the  malign  influences  of 
the  atmosphere.  The  unhealthiness  of  any  regimen 
is  to  be  tested  by  the  majority  who  die,  and  not  by 
the  minority  who  live. 

This  system  seems  to  have  been  borrowed  from 
England.  Note  what  the  poet  Cowper  says  of  it 
there.  He  was  placed  in  an  eminent  solicitor's  office, 
where  by  a  legal  fiction  he  was  supposed  to  learn  how 
actions  were  commenced  and  conducted,  with  the 
practice  in  law  and  equity.  He  says  that  he  slept 
three  years  in  the  solicitor's  house,  but  lived  in  the 
daytime  in  the  society  of  the  ladies,  while  he  and  a 
fellow  student  were  employed  in  giggling  and  making 
others  giggle  instead  of  studying  law.  The  legal 
knowledge  thus  gained  is  acquired  by  the  process  of 
insensible  absorption.  It  is  not  unsafe  to  say  that 
there  are  still  in  our  country,  though  perhaps  not  in 
so  busy  a  city  as  this,  modes  of  studying  law  quite 


48 


analogous.  Some  young  men  in  England,  of  higli  pur- 
poses, in  the  last  and  one  or  two  previous  generations, 
perceiving  tlie  futility  of  this  scheme,  submitted  them- 
selves to  the  voluntary  discipline  of  a  special  plead- 
er's office,  where,  for  a  very  large  yearly  fee,  they 
received  instruction.  The  well-known  Mr.  Tidd  had 
four  of  his  pupils  sitting  at  one  time  in  the  House  of 
Lords,  as  Law  Lords :  Lord  Lyndhurst,  Lord  Denman, 
Lord  Cottenham  and  Lord  Campbell.  The  latter 
says  :  "  To  the  unspeakable  advantage  of  having  been 
three  years  his  pupil,  I  ascribe  chiefly  my  success  at 
the  bar."  Such  coincidences  as  the  above  cannot 
be  fortuitous.* 


*  A  historical  account  of  the  modes  of  legal  education  adopted  in  England, 
and  under  the  Roman  law,  may  not  prove  uninteresting.  The  later  Eoman 
Emperors  required  a  study  of  the  law  for  five  years,  commencing  with  the 
Institutes  of  Justinian,  while  certain  other  portions  of  the  code  were  assigned 
to  be  studied  during  each  year.  There  were  well-known  law  schools  estab- 
lished at  Rome,  Constantinople  and  Berytus ;  the  one  at  Berytus  was  particu- 
larly famous  for  several  centuries.  The  Emperor  required  a  yearly  account 
of  the  behavior  and  progress  of  the  law  students,  in  order  that  he  might 
know  what  persons  to  employ  in  his  service.  It  cannot  be  supposed,  however, 
that  all  the  lawyers  in  the  Roman  empire  were  educated  in  these  law  schools. 
They  may  have  been  especially  established,  for  the  training  of  those  who  were 
needed  in  public  employments.  Salaries,  in  some  instances,  were  paid  from 
the  imperial  treasury.  During  the  middle  ages,  with  a  single  exception,  the 
study  of  the  law  was  closely  connected  with  its  practice.  If  jurisprudence 
was  studied  at  the  seminaries,  it  was  as  a  branch  of  general  education.  No 
separate  schools  existed.  The  exception  was  the  school  at  Ravenna,  in  Italy, 
in  the  eleventh  century,  which  was  probably  removed  thither  from  Rome,  and 
was  afterwards  transferred  to  Bologna,  where  it  became  famous.  Thus  we 
have  strong  reason  to  believe,  that  the  Roman  School  of  the  empire  has 
exerted,  by  this  removal,  a  marked  influence  over  the  legal  education  ot 
modern  times.  The  university  at  Bologna  deserves  special  notice.  It  was 
originally  a  simple  unincorporated  law  school,  which,  by  the  excellence  of  its 


MR.  dwight's  addeess.  49 

It  is  safe  to  say  that  the  mass  of  young  men,  who 
engage  in  the  study  of  Law,  commence  theii-  work 
with  minds  undiscij^lined  to  the  nice  distinctions 
and  analysis  required   for   its   perfect   masteiy.     It 

instructions,  attracted  crowds  of  scholars.  The  Emperor  Frederick  I.,  in  1 1 58, 
granted  peculiar  privileges  to  foreign  students,  and,  among  others,  the  right 
to  be  tried  in  civil  and  criminal  matters  by  their  professors,  or  by  the  bishop  of 
the  province.  This  rule  was  copied  from  the  enactment  of  Justinian,  govern- 
ing the  law  school  at  Berytus.  At  this  time  the  scholars  elected  their  own 
professors.  Afterwards,  students  in  the  department  of  theology  and  medicine 
came  thither,  and  the  institution  assumed  the  form  of  an  university,  with  a 
rector.  The  law  professors  were  of  two  classes :  ordinary  and  extraordinary. 
The  former  read  lectures  upon  certain  authoritative  books,  at  which  all  the 
students  were  expected  to  be  present ;  the  latter  class  lectured  upon  other 
treatises,  and  attendance  is  supposed  to  have  been  optional.  Besides  the  formal 
lectures,  there  were  full  expositions  of  particular  texts  in  the  law,  and  ques- 
tions were  discussed,  which  had  been  previously  announced  to  the  disputants. 
As  the  school  at  Eavenna,  at  least,  was  in  operation  at  the  time  of  the  Xor. 
man  conquest,  and  was  transferred  to  Bologna  not  long  after,  it  is  altogether 
probable  that  the  ecclesiastics  introduced  into  England,  with  the  Eoman 
Jurisprudence,  this  mode  of  studying  law.  The  legal  profession  apparently  had 
an  ecclesiastical  origin.     (See  Pearce's  Inns  of  Court,  p.  14.) 

The  common  law  of  England,  however,  as  far  back  as  the  middle  of  the 
thirteenth  century,  was  studied  in  the  Inns  of  Court,  in  a  quiet  retreat, 
between  the  City  of  London  and  Westminster.  These  Inns  of  Court  were 
four  in  number,  with  preparatory  schools  called  Inns  of  Chancery.  These 
bodies  well  illustrate  the  character  of  the  early  Englishmen.  They  were 
voluntary  associations,  and  unincorporated.  They  granted  degrees  in  Muni- 
cipal Law,  and  the  barrister  went  to  the  bar  without  any  authority  except 
that  granted  by  the  heads  of  the  Inn  to  which  he  belonged ;  the  Judges  had 
a  private  visitatorial  power  over  the  authorities  in  each  Inn,  probably 
because  they  were  the  chief  men  in  the  law,  but  they  could  not  require  the  soci- 
ety to  add  any  person  to  their  number  unless  they  saw  fit,  while  no  one  could 
become  a  barrister  in  any  other  way  than  by  belonging  to  one  of  these  Inns, 
not  even  by  letters  patent.  These  four  Inns  stood  on  an  equaUty,  so  as  to 
form  a  kind  of  university.  The  Inns  of  Chancery,  as  has  been  mentioned, 
were  preparatory  schools,  in  which  were  taught  the  grounds  and  principles  of 
law.  Such  men  as  Coke  and  Holt  deUvered  lectures,  while  "mootings'' 
and  viva  voce  exercises  occupied  the  students  and  prepared  them  for 
practice.    Fortescue  gives  a  pleasing  account  of  these  schools  in  hi*  time. 


50  MR.  dwight's  addeess. 

is  also  a  growing  complaint  tliat  the  younger 
members  of  the  profession  are  untrained  in  its  prin- 
ciples, tliat  tliey  make  the  law  a  trade,  a  mere 
mechanical  employment ;  that  instead  of  being  artists 

He  says  that  "  the  students  resorted  thither  in  great  numbers,  to  be  taught  as  in 
common  schools.  Here  was  a  school  of  commendable  qualities.  Here  they 
learn  to  sing  and  to  exercise  themselves  in  all  kinds  of  harmony.  On  the  work- 
ing days  they  study  law,  on  the  holy  days  Scripture,  and  their  demeanor  is  like 
the  behavior  of  such  as  are  coupled  together  in  perfect  amity.  There  is  no 
place  where  are  found  so  many  students  past  childhood  as  here."  The  labor 
of  preparing  lectures  grew  irksome  after  a  time :  the  readers  of  lectures,  on 
their  appointments,  were  expected  to  give  costly  entertainments  to  the  stu- 
dents, and  the  lectures,  as  a  consequence,  ceased  to  be  read.  Every  advance- 
ment in  the  degrees  of  the  students  themselves  "was  attended  with  a  position 
at  the  cupboard  (a  very  desirable  station),  or  with  a  garnish  of  wine." 

Some  curious  details  are  given,  by  the  authors  cited  below,  of  the  masquer- 
ades and  revelings  at  these  Inns.  In  time,  the  requisitions  for  the  prelimina- 
ry admission  became  merely  nominal.  The  students  were  examined  in  the 
classics,  not  to  see  whether  they  were  scholars,  but  "  to  ascertain  how  they 
had  spent  their  time  before  coming  to  the  Inn,  and  whether  they  had  the 
manners  of  gentlemen."  The  requisites  for  admission  to  practice,  after 
becoming  a  student,  mainly  consisted  in  having  eaten  a  certain  number  of 
dinners,  in  each  year,  for  a  fixed  number  of  years,  in  the  common  hall. 
Latterly  there  has  been  a  disposition  to  revive  some  part  of  the  old  plan  of 
instruction.  The  present  course  is,  to  give  lectures  in  the  Inns,  while  those 
students,  who  wish  to  obtain  position  at  the  bar,  employ  a  special  pleader  to 
teach  them,  in  addition,  and  they  also  attend  the  discussions  in  the  moot 
courts.  The  Lord  Chancellor  of  Ireland,  in  a  paper  read  before  the  Socie- 
ty for  the  Advancement  of  Social  Science,  reported  in  the  London  Jurist,  of 
October  22d,  1858,  after  strongly  insisting  on  the  necessity  of  a  more  tho- 
rough classical  and  legal  training  among  the  members  of  the  bar,  predicts 
that  the  Inns  of  Court  will  soon  adopt  some  effectual  plan  for  increasing  the 
attainments  of  law  students.  On  the  Continent,  law  schools  arose  in  the  four- 
teenth century,  being  formed  on  the  plan  of  the  Bolognese  School.  In  Ger- 
many, for  instance,  all  who  are  intrusted  with  legal  business  must  receive 
their  instruction  under  regular  law  professors.  For  full  details  of  the  school 
at  Bologna,  see  "  Savigny's  Geschichte  des  Romischen  Rechts,"  vol.  1,  chap. 
G;  voh  3d,  pages  152,  272,  and  for  English  system,  see  "  Pearce's  Inns  of 
Court,"  "Herbert's  do.,"  "Duhigg's  King's  Inns,  "Fortescue  de  Laudibus," 
&c.,  &c.,  &c. 


MR.    D WIGHTS     ADDRESS.  51 

in  tlieir  profession,  they  are  content  witli  being  arti- 
sans. Perliaps  we  may  yet  liave  to  carry  out  Lord 
Bacon's  suggestion,  that  there  shoukl  be  a  civil  re]3re- 
hension  from  the  Bench  of  those  advocates  who  bring 
to  the  case  slight  information,  or  are  guilty  of  gross 
neglect,  or  who  undertake  an  overbold  defense.  It  is 
consolatory,  however,  to  know  that  this  class  of  men  is 
not  new  to  the  profession,  and  that  we  are  not  so  greatly 
dea-eneratino*.  When  old  Lord  Chancellor  Hatton,  some 
centuries  ago,  was  addressing  the  bar  on  one  occasion, 
he  said:  "I  find  that  there  are  at  the  bar  many 
unmeet  young  men,  very  raw  and  young  men,  negli- 
gent and  careless,  which  truly,  in  my  opinion,  is  a 
great  sin  and  fault  that  we  should  commit  our  rights 
of  goods  and  persons  to  such  men." 

It  is  unnecessary  to  say  one  word  as  to  the  evil 
inflicted  upon  the  commmiity  by  an  ignorant  bar. 
But  it  ought  to  be  said  that  the  leading  memljers  of 
the  profession  are  themselves  partly  responsible  for 
its  existence.  The  standard  of  admission  to  practice 
has  been  placed  too  low.  If,  however,  the  recent  rule 
of  the  Supreme  Court  is  fully  carried  into  eftect, 
introduced,  as  I  personally  know,  from  the  most 
praiseworthy  motives,  by  one  of  the  judges  who  longs 
for  higher  attainments  among  law  students,  and 
seconded,  as  it  appears  to  have  been,  with  earnest 


52  ME.  D wight's  address. 

ness  by  his  brethren,  much  will  be  achieved.  It 
introduces  a  new  feature  into  many  of  our  examina- 
tions, in  that  the  student  must  be  examined  upon 
legal  princij^les,  and  not  merely  upon  practice. 

It  is  at  this  point  that  law  schools  find  their  justi- 
fication and  found  their  claim  to  support.  In  my 
judgment,  they  ought,  in  this  country,  when  fully 
organized,  to  combine  both  the  gymnasium  and  the 
university.  They  should  train  the  student  and  teach 
him  how  to  study,  and  after  the  work  is  done,  or 
while  it  is  being  done,  communicate  information  on 
special  topics  by  full  courses  of  lectures.  The  period 
of  study  should  be  long  enough  to  accomphsh  both 
results-.  The  instruction  should  mainly  be  scientific ; 
so  far  as  it  can  at  the  same  time  be  practical,  it  must 
be.  While,  on  the  one  hand,  a  law  school  should  not 
be  a  mere  school  of  practice,  on  the  other  hand,  it 
should  not  prepare  its  students  to  be  mere  lovers  of 
the  science  of  law.  They  should  be  lawyers,  or,  at 
least,  their  studies  so  shaped  as  not  to  give  them  a 
distaste  for  the  practical  side  of  the  profession.  It  is 
our  belief,  then,  that  a  mere  system  of  lectures,  which 
might,  in  a  foreign  country,  be  sufficient  for  a  listener 
who  had  previously  passed  through  a  course  of  tho- 
rough preliminary  study,  is  not  applicable  in  a  coun- 
try where  there  ls  no  path  to  the  profession  pre- 
scribed by  law  or  public  opinion,  and  where  any  adult 


53 


male  citizen,  witliout   such  training,  may  claim  it^ 
honors  or  degrade  it  by  his  unworthiness.* 

We  would  not  close  this  subject  without  stating 
our  view,  that  at  the  foundation  of  all  our  law  hes 
the  doctrine  of  a  true  morahty.  The  law,  itself,  is 
beneath  all  our  constitutions,  and  without  it  no  con- 
stitution is  possible — at  least,  this  law  that  the 
minority  yield  to  the  majority,  with  another  equally 
important,  that  the  majority  hold  their  jjower  only 
in  trust  for  the  general  good.  "  Underneath  our  mu- 
nicipal law,"  says  an  old  author,  "  is  the  law  eternal, 
which  ought  to  be  always  before  om'  eyes,  as  being  of 
principal  force  and  moment  to  breed  in  human  minds 
a  dutiful  estimation  of  all  laws,  because  there  can  be 
no  doubt  that  laws  apparently  good  are  copied  out  of 
the  very  tables  of  that  high  and  everlasting  law,  not 
as  if  men  did  behold  those  tables,  and  accordingly 
fi'ame  those  laws,  but  because  it  worketh  in  them,  be- 
cause it  unfolds  itself  by  them  when  the  laws  which 
they  make  are  righteous."    We  are  not  exempted,  as 

*  Since  the  above  was  written,  I  have  been  gratified  to  meet  with  the  follow- 
ing passage  in  a  work  on  the  study  of  the  Roman  law,  by  Prof.  Veyrieres,  law 
professor  in  Paris — he  says  :  "In  studying  the  civil  law,  it  is  necessary  to  pre- 
sent to  the  pupil  its  history,  in  order  to  show  the  connection  of  the  different 
rules.  It  is  also  necessary  to  give  exact  definitions,  whose  precision  shall  be 
equal  to  their  clearness — without  the  aid  of  good  definitions,  logical  divisions, 
and  recapitulations,  succinct  but  accurate,  which  are  as  it  were  a  species  of 
definitions,  and  superior  to  them,  the  lectures  of  the  professor  (f  speak  fro»i 
experience)  are  but  idle  words  thrown  out  to  the  wind,  while  nothing,  or  next 
to  nothing,  is  retained  by  the  hearers." 


5-4  31 II.  dwight's  address. 

advocates,  either,  from  the  ethical  rules  which  bind 
other  men.  On  this  point  it  is  to  be  feared  that  the 
average  public  sentiment  in  the  profession  is  too 
low.  Men  must  not  draw  a  nice  distinction  between 
])rivat6  honor  and  professional  honor.  The  one 
is  as  truly  delicate  as  the  other.  Nor  do  we  or  the 
community  feel  sufficiently  the  close  connection  be- 
tween the  high  character  of  the  legal  profession  and 
the  well-being  of  the  State.  The  fact,  that  the  laws 
are  complete,  is  of  no  consequence,  unless  we  have 
true  men  to  administer  them.  The  best  laws,  like 
machinery,  are  capable  of  having  their  power  per- 
verted. Law  itself  is  inert;  a  mere  abstract  state- 
ment ;  as  abstract  as  a  mathematical  proposition.  It 
is  but  the  major  premiss  of  a  syllogism.  It  is  the 
advocate  and  judge  who  give  it  vitality  and  power. 
Both  are  ministers  of  justice.  Each  holds  a  high 
trust,  to  do  no  act  which  shall  disturb  the  well-being 
of  the  Commonwealth.  History  and  experience, 
alike,  teach  us  that  lawyers  without  principle  may  do 
unlimited  harm.  There  have  been  those  to  whom 
Sallust's  remark  applied,  that  it  was  a  great  reward 
to  them  if  they  could  only  disturb  those  things  which 
were  previously  quiet.* 

*The  Roman  jurist  Ulpian  had  a  high  idea  of  the  true  dignity  of  his 
profession.  He  says:  "We  are  properly  called  priests — we  worship  justice, 
profess  the  knowledge  of  good  and  evil,  separating  the  just  from  the  unjust, 
discerning  the  lawful  from  the  unlawful,  and,  unless  I  am  mistaken,  desire  a 
true  and  not  a  false  philosophy." 


ME.  D wight's  addeess.  55 


Gentlemen  of  tlie  Law  Class,  we  invite  yon,  tlien, 
to  a  course  of  study  and  of  diligent  labor.  This 
science  cannot  be  learned  without  study.  We  hope, 
however,  to  smooth  the  pathway  to  the  subject,  and 
to  lighten,  somewhat,  the  labors  of  the  ascent.  You 
may  not  reach  the  meaning  of  the  principle  at  once. 
Be  not  discouraged,  for,  on  a  second  perusal,  or  at 
some  other  time,  it  will  become  clear. 

We  would  hope,  in  the  language  of  Lord  Coke, 
"  that  we  may  open  some  windows  of  the  law,  to  let 
in  more  light  to  the  student,  by  diligent  search  to 
see  the  secrets  of  the  law,  or  to  move  him  to  doubt, 
and  to  enable  him  to  inquii*e  and  to  learn  of  the 
sages  what  the  law,  together  with  the  true  reason 
thereof,  is,  knowing,  for  certainty,  that  the  law  is 
unknown  to  him  that  knoweth  not  the  reason  thereof" 
— while  we  would  extend  to  you,  as  a  greeting,  what 
he  uttered  as  a  farewell :  "  We  wish  unto  you  the 
gladsome  light  of  jurisprudence,  the  loveliness  of 
temperance,  the  stability  of  fortitude,  and  the  solidity 
of  justice." 


AN    APOLOGY 


FOR   THE 


STUDY  OF  ENGLISH, 


DKLIVEKED 


BY  GEORGE  P.   MARSH, 


ON 


MONDAY,  NOVEMBER  1,  1858, 

INTRODUCTORY   TO   A    SERIES    OF    LECTURES    IN    THE    I'OST- 
GRADUATE     COURSE     OF 

COLIBIBIA  COLLEGE,  NEW  YORK. 


ADDRESS. 


The  severe  Komaii  bestowed  upon  the  language  of 
liis  native  land  the  appellation  of  ^atrius  sermo^  the 
paternal  speech;  but  we,  deriving  from  the  domes- 
ticity of  Saxon  life  a  truer  and  tenderer  appreciation 
of  the  best  and  purest  source  of  linguistic  instruction, 
more  happily  name  our  home-born  English  the  mother 
tonsrue.  The  tones  of  the  native  lanc^uas^e  are  the 
medium  through  which  the  affections  and  the  intel- 
lect are  first  addressed,  and  they  are  to  the  heart  and 
the  head  of  infancy  what  the  nutriment  drawn  from 
the  maternal  breast  is  to  the  physical  frame. 
"Speech,"  in  the  words  of  Heyse,  "is  the  earliest 
organic  act  of  free  self-consciousness,  and  the  sense 
of  our  personality  is  first  developed  in  the  exercise 
of  the  faculty  of  speech."  Without  entering  uj^on 
the  speculations  of  the  Nominalists  and  the  Realists, 
we  must  admit  that,  in  that  process  of  ratiocination 
properly  called  tliouglit,  the  mind  acts  only  by  words. 
"  Cogito^  ergo  sum^  I  think,  therefore  I  am,"  said 
Descartes.  Whether  this  is  a  logical  conclusion  or 
not,  we  habitually,  if  not  necessarily,  connect  words, 
thought,  and  self-recognizing  existence,  as  conditions 
each  of  both  the  others,  and  hence  it  is  that  we 


60  ME.  maesh's  addeess. 

have  little  or  no  recollection  of  that  portion  of  our 
life  which  preceded  our  acquaintance  with  language. 
Indeed,  so  necessary  are  words  to  thought,  to 
reflection,  to  the  memory  of  former  states  of  self- 
conscious  being,  that  though  the  intelligence  of 
persons  born  without  the  sense  of  hearing  some- 
times receives,  through  the  medium  of  manual  signs, 
and  without  instruction  in  words,  a  very  consid- 
erable degree  of  apparent  culture,  yet,  when  deaf 
mutes  are  educated  and  taught  the  use  of  verbal 
language,  they  are  generally  almost  wholly  unable  to 
recall  their  mental  status  at  earlier  periods ;  and,  so 
far  as  we  are  able  to  judge,  they  appear  to  have  been 
devoid  of  those  conceptions  which  we  acquire,  or,  at 
least,  retain  and  express,  by  means  of  general  terms. 
So  our  recollection  of  moments  of  intense  pain  or 
pleasure,  moral  or  physical,  is  dim  and  undefined. 
Grief  too  big  for  words,  joy  which  finds  no  articulate 
voice  for  utterance,  sensations  too  acute  for  descrip- 
tion, when  once  their  cause  is  removed,  or  when  time 
has  abated  their  keenness,  leave  traces  deep  indeed 
in  tone,  but  too  shadowy  in  outline  to  be  capable  of 
distinct  reproduction ;  for  that  alone  which  is  precise- 
ly formulated  can  be  clearly  remembered. 

Nature  has  made  speech  the  condition  and  vehicle 
of  social  intercourse,  and  consequently  it  is  essentially 
so  elementary  a  discipline,  that  a  thorough  Iniowl- 


/ 


61 


edge  of  the  motLer  tongue  seems  to  be  presupposed 
as  the  basis  of  all  education,  and  esj^ecially  as  an 
indispensable  preparation  for  the  reception  of  aca- 
demic instruction.  It  is,  doubtless,  for  this  reason,  \ 
that  the  study  of  the  English  language  has  usually 
been  almost  wholly  excluded  from  the  collegial 
curriculum,  and  recently,  indeed,  from  humbler  semi- 
naries in  our  American  system  of  education,  and, 
therefore,  so  great  a  novelty  as  its  abrupt  transfer 
from  the  nursery  to  the  auditorium  of  a  post-gradu- 
ate course  may  seem  to  demand  both  explanation 
and  apology. 

It  is  a  trite  remark,  that  the  national  history  and 
the  national  language  begin  to  be  studied  only  in 
their  decay,  and  scholai's  have  sometimes  shown  an 
almost  superstitious  reluctance  to  approach  either, 
lest  they  should  contribute  to  the  aggravation  of  a 
symptom,  whose  manifestation  might  tend  to  hasten 
the  catastrophe  of  which  it  is  the  forerunner.  In- 
deed, if  we  listen  to  some  of  the  voices  around  us, 
we  are  in  danger  of  being  persuaded  that  the 
decline  of  our  own  tongue  has  not  only  commenced, 
but  has  already  advanced  too  far  to  be  averted  or 
even  arrested.  If  it  is  true,  as  is  intimated  by  the 
author  of  our  most  widely-circulated  dictionary 
— a  dictionary  which  itself  does  not  ex]^)lain  the 
vocabulary  of  Paradise  Lost — that  it  is  a  violation 


02  ME.  maksh's  addeess. 

of  the  jDresent  standard  of  good  taste  to  employ  old 
Englisli  words  not  used  hj  Dryden,  Pope,  Gray, 
Goldsmitli  and  Cowper;  if  words  wliicli  enter  into 
tlie  phraseology  of  Spenser,  and  Shakspeare,  and 
Milton,  thongli  important  "to  the  antiquary,  are 
useless  to  the  great  mass  of  readers;"  and,  above 
all,  if  the  dialect  of  the  authoritative  standard  of 
the  Christian  faith,  in  the  purest,  simplest,  and  most 
beautiful  form  in  which  it  has  been  presented  to 
modern  intelligence,  is  obsolete,  unintelligible,  for- 
gotten, then,  indeed,  the  English  language  is  decayed, 
extinct,  fossilized,  and,  like  other  organic  rehcs  of  the 
past,  a  fit  subject  for  curious  antiquarian  research 
and  philosophic  investigation,  but  no  longer  a  theme 
of  living,  breathing  interest. 

In  reasoning  from  the  past  to  the  present,  we  are 
apt  to  forget  that  Protestant  Christianity  and  the 
invention  of  printing  have  entirely  changed  the  out- 
ward conditions  of  at  least  Gothic,  not  to  say  civilized, 
humanity,  and  so  distinguished  this  new  phase  of 
Indo-European  life  from  that  old  world  which  lies 
behind  us,  that,  though  all  which  was  true  of  indi- 
\ddual  man,  in  the  days  of  Plato,  and  of  Seneca,  and 
of  Abelard,  is  true  now,  yet  most  which  was  con- 
ceived to  be  true  of  man  as  a  created  and  dependent, 
or  as  a  social  being,  is  at  this  day  recognized  as  either 
false  or  abnormal.     The  reciprocal  relations  between 


I 


63 


the  means  and  the  ends  of  human  hfe  are  reversed, 
and  the  conscions,  deliberate  aims  and  vohmtary  pro- 
cesses and  instrumentalities  of  intellectual  action  are 
completely  revolutionized.  Hence,  we  are  constantly 
in  danger  of  error,  when,  in  the  economy  of  social 
man,  we  apply  ancient  theories  to  modern  facts,  and 
deduce  present  effects  or  predict  future  consequences 
from  causes  which,  in  remote  ages,  have  produced 
results  analogous  to  recent  or  exj^ected  phenomena. 
This  is  especially  true  with  reference  to  those  studies 
and  those  pursuits  which  are  less  immediately  con- 
nected with  the  fleeting  interests  of  the  hour.  We 
are,  accordingly,  not  warranted  in  concluding  that, 
because  the  creative  spirits  of  ancient  and  flomishing 
Hellenic  literature  did  not  concern  themselves  with 
grammatical  subtleties,  but  left  the  syntactical  and 
orthoepical  theories  of  the  Greek  language  to  be 
developed  in  late  and  degenerate  Alexandria,  there- 
fore the  study  of  native  philology  in  commercial 
London  and  industrial  Manchester  proves  the  deca- 
dence of  the  heroic  speech,  which  in  former  centuries 
embodied  the  epic  and  dramatic  glories  of  English 
genius. 

The  impulse  to  the  study  of  English,  and  especially 
of  its  earlier  forms,  which  has  lately  begun  to  be  felt 
in  England  and  in  this  country,  is  not  a  result  of  the 
action  of  domestic  causes.     It  has  not  grown  out  of 


04  MR.    MAESIl's   ADDRESS. 

anything  in  the  political  or  social  condition  of  the 
English  and  American  people,  or  out  of  any  morbid 
habit  of  the  common  language  and  literature  of 
both,  but  it  had  its  origin  wholly  in  the  contagion 
of  Continental  example.  The  jealousies  and  alarms 
of  the  turbulent  period  which  followed  the  first 
French  Revolution,  and  which  suspended  the  inde- 
pendent political  existence  of  so  many  of  the  minor 
European  States,  and  threatened  all  with  ultimate 
absorption,  naturally  stimulated  the  self-conscious 
individuality  of  every  race,  and  led  them  alike  to 
attach  special  value  to  everything  characteristic, 
everything  peculiar,  in  their  own  constitution, 
their  own  possessions,  their  own  historic  recollec- 
tions, as  conservative  elements,  as  means  of  resistance 
against  an  influence  which  sought,  first,  to  denation- 
alize, and  then  to  assimilate  them  all  to  its  own 
social  and  governmental  system.  Hence,  contem- 
poraneously with  the  wars  of  that  eventful  crisis, 
there  sprang  up  a  universal  spirit  of  local  inquiry, 
local  pride,  and  local  patriotism;  the  history,  the 
archaeology,  the  language,  the  early  literature,  of 
every  European  people,  became  objects  of  earnest 
study,  first  with  its  own  scholars,  then  with  allied 
nations  or  races,  and,  finally,  by  the  power  of  inter- 
national sympathy,  and  the  unexpected  light  which 
etymological  researches  have  thrown  on  some  of  the 


MK.  maesh's  address.  65 

most  interesting  questions  belonging  to  present  psy- 
chology and  to  past  history,  with  enlightened  and 
philosophic  thinkers  everywhere. 

The  people  of  England  were  less  agitated  by  the 
fears  which  disturbed  the  repose  of  the  Continental 
nations,  and  they  are  constitutionally  slow  in  yield- 
ing either  to  moral,  to  intellectual,  or  to  material 
impulses  from  without.  Accordingly,  while  the 
philologists  and  historians  of  Denmark  and  of  Ger- 
many were  studiously  investigating  and  elucidating 
the  course  of  Anglo-Saxon  history,  the  laws  of  the 
Anglo-Saxon  language,  and  the  character  of  its 
literature,  as  things  cognate  with  their  own  past 
glories  and  future  aspirations,  few  native  English 
inquirers  busied  themselves  with  studies,  whose 
obscure,  though  real,  connection  with  the  stirring 
events  of  that  epoch  no  timid  sensitiveness  had  yet 
taught  the  British  mind  to  feel. 

But  although  the  interest  now  manifested  in  the 
history  and  true  linguistic  character  of  the  English 
speech  originated  in  external  movements,  yet  it  must 
be 'admitted  that  it  is,  at  this  moment,  strengthened 
in  England  by  a  feeling  of  apprehension  concerning 
the  position  of  that  country  in  coming  years — an 
apprehension  which,  in  spite  of  occasional  manifesta- 
tions of  hereditary  confidence  and  pride,  is  a  very 
widely-prevalent  sentiment  among  the  Britisih   peo- 


66  MK.    MAESIl's   ADDEESS. 

pie.  Kecent  occurrences  have  inspired  an  anx- 
iety amounting  almost  to  alarm,  in  reference  to  their 
relations  with  their  nearest,  as  well  as  their  more 
remote.  Continental  neighbors,  and  those,  who  know 
that  twice  in  the  seventeenth  century  England  was 
fast  drifting  towards  a  vassalage  to  France,  may  well 
be  pardoned  for  some  misgivings  with  regard  to  the 
present  tendencies  of  the  British  social  and  political 
state.  In  such  circumstances,  it  is  natural  that 
enlio-htened  En2:lishmen  should  cherish  a  livelier 
attachment  to  all  that  is  great  and  reverend  in  the 
memories  of  their  early  being,  and  thought,  and 
action,  and  should  regard  with  increasing  interest  the 
records  that  recount  the  series  of  intellectual  and 
physical  triumphs  by  which  the  Anglo-Saxon  and 
the  Norman  raised  the  Empire  they  successively 
conquered  to  such  an  unexampled  pitch  of  splendor 
and  of  power. 

Modern  philology,  then,  did  not,  like  ancient 
grammatical  lore,  originate  in  the  Hfe-and-death 
struggle  of  perishing  nationalities,  nor  in  a  morbid 
consciousness  of  internal  decay  and  approaching  dis- 
solution, but  in  a  sound,  philosophic  appreciation  of 
the  surest  safeguard  of  national  independence  and 
national  honor — an  intelligent  comprehension,  namely, 
of  what  is  good  and  what  is  great  in  national  history, 
•  national  institutions,  national  character.     It  is  a  pul- 


3m.  maesh's  address.  67 

satiou  of  life,  not  a  tliroe  of  death ;  a  token  of  regen- 
eration, not  a  sign  of  extinction.  The  zeal  with  which 
these  studies  are  pursued  is  a  high  expression  of 
intellectual  patriotism,  a  security  against  the  perils 
of  al^sorption  and  centralization  which  are  again 
menacino:  the  commonwealths  of  the  Eastern  Con- 
tinent,  a  bulwark  against  the  dangers  with  which 
what  exists  of  Continental  liberty  is  threatened,  now 
by  the  luxurious  over-ci^olization  which  follows  a 
wide  and  successful  commerce,  now  by  Muscovite 
barbarism,  and  now  by  pontifical  obscurantism. 

The  fruits  of  increased  attention  to  domestic  phil- 
ology have  been  strikingly  manifested  in  the  reviving 
literatures,  and  the  awakening  moral  and  political 
energies,  of  many  lesser  European  peoples,  which, 
untn  the  agitations  I  speak  of,  seemed  to  be  fast  sink- 
ing into  forgetfulness  and  uiactiou.  States  and  races, 
long  deemed  insignificant  and  decrepit,  have  given  a 
new  impulse  to  the  intellectual  movement  of  our  age, 
and,  at  the  same  time,  are  throwing  uj)  new  barricades 
against  the  encroachments  of  the  great  Continental 
despotisms.  Denmark,  Norway,  Sweden,  Poland, 
Bohemia,  Hungary,  have  roused  themselves  to  the 
creation  of  new  letters,  and  the  manifestation  of  a 
new  popular  life.  The  Europe  of  to-day  is  protest- 
ing against  being  Teutonized,  as  energetically  as  did 
the  Europe  of  1800  against  conformity  to  a  Gallic 


68 


orgauizatiou,  and  we  may  well  hope  that  the  same 
spirit  will  be  found  equally  potent  to  resist  the 
Panslavic  invasion,  which  is  the  next  source  of 
danger  to  the  civil  and  the  intellectual  hberties  of 
Christendom. 

There  are  circumstances  in  the  inherent  character 
of  the  English  language  which  demand — there  are 
cii'cumstances  in  its  position  which  recommend — the 
most  sedulous  and  persevering  investigation.  I  will 
not  here  speak  of  what  belongs  to  another  part  of 
our  course — the  general  value  and  importance  of 
linguistic  inquiry — but  I  will  draw  your  attention  to 
the  multifarious  etymology  of  our  Babylonish  vocabu- 
lary, and  the  comj)osite  structrue  of  our  syntax,  as 
peculiarities  of  the  English  tongue  not  shared  in  an 
equal  degree  by  any  other  European  speech  known 
in  literature,  and  which  require  an  amount  of  system- 
atic study  not  in  other  cases  usually  necessary.  The 
ground-work  of  English,  indeed,  can  be,  and  best  is, 
learned  at  the  domestic  fireside — a  school  for  which 
there  is  no  adequate  substitute ;  but  the  knowledge 
there  acquired  is  not,  as  in  homogeneous  languages, 
a  root,  out  of  which  will  spontaneously  grow  the 
flowers  and  the  fruits  which  adorn  and  enrich  the 
speech  of  man.  English  has  been  so  much  affected 
by  extraneous,  alien,  and  discordant  influences,  so 
much  mixed  with  foreign  ingredients,  so  much  over- 


IVITl.     MAESIl's     ADDKESS.  69 

loaded  witli  adventitious  aj^pendages,  that  it  is,  to 
most  of  tliose  wlio  speak  it,  in  a  considerable  de- 
gree, a  conventional  and  arbitrary  symbolism.  The 
Anglo-Saxon  tongue  has  a  craving  appetite,  and  ls  as 
rapacious  of  words,  and  as  tolerant  of  forms,  as  are 
its  children  of  territory  and  of  religions.  But,  in 
spite  of  its  power  of  assimilation,  there  is  much  of 
the  speech  of  England  which  has  never  become  con- 
natural to  the  Anglican  people,  and  it  has  passively 
suffered  the  introduction  of  many  syntactical  com- 
binations, which  are  not  merely  irregular,  but  repug- 
nant. It  has  lost  its  original  organic  law  of  progress, 
and  its  present  growth  is  by  accretion,  not  by  devel- 
opment. 1  shall  not  here  inquire  whether  this 
condition  of  English  is  an  evil.  There  are  many  cases 
where  a  [complex  and  cunningly-devised  machine, 
dexterously  guided,  can  do  that  which  the  congenital 
hand  fails  to  accomplish ;  but  the  computing  of  our 
losses  and  gains,  the  striking  of  our  linguistic  balance, 
belongs  elsewhere.  Suffice  it  say,  that  English  is  not 
a  language  which  teaches  itself  by  mere  unreflecting 
usage.  It  can  only  be  mastered,  in  all  its  wealth,  in 
all  its  power,  by  conscious,  pei*sistent  labor;  and, 
therefore,  when  aU  the  world  is  awaking  to  the  value 
of  general  philological  science,  it  would  ill  become  us 
to  be  slow  in  recognizing  the  special  importance  of 
the  study  of  our  own  tongue. 


\ 


70  JIR.     MAESHS     ADDRESS. 

But,  in  order  tliat  tliis  study  may  commend  itself  to 
tlie  popular  mind,  its  value  and  its  interest  must  first 
be  made  apj^arent  to  the  thinking  spirits  by  whom 
the  cm-rent  of  public  opinion  is  determined.  Knowl- 
edge has  its  sources  on  the  heights  of  humanity,  and 
culture  derives  its  authority  from  the  example  of  the 
acknowledged  leaders  of  society.  Studies  whicli  are 
neglected  or  undervalued  by  the  educated  man,  will 
have  still  less  attraction  for  the  pupil  and  his  teacher, 
and  Enghsh  philology  cannot  win  its  way  to  a  form 
in  American  high-schools,  until  it  shall  have  been 
recognized  as  a  worthy  pursuit  by  the  learned  and  the 
wise,  who  are  no  longer  subject  to  the  authority  of 
academic  teachers. 

But,  great  as  is  the  practical  importance  of  the 
knowledge  of  words,  let  it  not*  be  said  that,  for  its 
sake  alone,  we  encourage  inquiry  into  the  structure 
and  constitution  of  our  national  speech.  The  dis- 
cipline we  advocate  embraces  a  broader  range,  and 
extends  itself  to  the  scientific  notion  of  philology, 
which,  though  familiar  in  German  literature,  has  not 
yet  become  the  recognized  meaning  of  the  word  in 
English.  The  course  we  propose  includes,  naturally 
and  necessarily,  the  study  of  those  old  English 
writers,  in  whose  works  we  find,  not  only  the  most 
forcible  forms  of  expression,  but  a  marvelous  afflu- 
ence of  the  mighty  thoughts,  out  of  which  has  grown 


J\IE.    ]\rARSH's    ADDEESS.  Tl 

the  action  that  has  made  England  and  her  cliildren 
the  wonder  and  the  envy  of  the  world.  Indeed, 
with  respect  to  the  technicalities  of  grammar  and 
etymology,  the  radical  forms  of  structure  which 
characterize  our  ancient  touo;ue,  the  American  student 

O  7 

has  but  narrow  means  of  original  research.  His 
investigations  must,  for  the  present,  l^e  pursued  at 
second-hand,  by  the  aid  of  materials  inadequate  m 
tjiemselves,  and,  too  often,  collected  with  little  j  tidg- 
ment  or  discrimination.  The  standard  of  linguistic 
science  in  England  is  comparatively  low.  British 
scholars  have  produced  few  satisfactory  discussions 
of  Anglo-Saxon  or  Old  English  inflectional  or  struc- 
tural forms,  and  it  is  to  Teutonic  zeal  and  talent  that 
we  must  still  look  for  the  elucidation  of  most  points 
of  interest  connected  with  either  the  form  or  the 
signification  of  primitive  English.  A  large  pro- 
■  portion  of  the  relics  of  Anglo-Saxon  and  of  early 
English  literature  remains  still  unpublished,  or  has 
been  edited  with  so  little  sound  learning  and  critical 
ability  as  to  serve  less  to  guide  than  to  lead  astray. 
Hence,  in  the  determination  of  ancient  texts,  we 
must  often  accept  hasty  conjecture,  or  crude  oj^inion, 
in  place  of  established  fact.  But  a  better  era  has 
commenced.  Englishmen  are  learning,  from  Conti- 
nental linguists,  to  do  what  native  scholarship  and 
industry  had  hitherto  proved  unable  to  accomphsh ; 


72  MR.     MAESn's     ADDRESS. 

and  we  may  liope  tliat,  at  no  distant  day,  the  yet 
hidden  treasures  of  British  philology  will  all  be 
made  accessible,  and  permanently  secured  for  future 
study,  by  means  of  the  art  which  has  been  styled 
Ars  omnium  Artiibi  Conservatrix. 
The  general  inferiority  of  English  and  French  to 
Scandinavian  and  Teutonic  scholars,  in  philological 
and  especially  etymological  research,  is  a  remarkable, 
but  an  indisputable  fact,  and  its  explanation  is  not 
obvious.  I  can  by  no  means  ascribe  the  difference 
to  an  inherent  inaj^titude  on  our  part  for  such  subtle 
investigations,  to  a  native  insensibility  to  the  delicate 
relations  between  allied  sounds  and  allied  significa- 
tions; but  I  believe  the  cause  to  lie  much  in  the 
different  intellectual  habits  which  are  formed  in  early 
life,  by  the  use  of  the  respective  languages  of  those 
nations.  The  German  is  remarkably  homogeneous  in 
its  character.  An  immense  proportion  of  its  vocabu- 
lary consists  either  of  simple  primitives,  or  of  words 
obviously  compounded  or  derived  from  radicals, 
which  still  exist  in  current  use  as  independent  voca- 
bles. Its  grammatical  structure  is  of  great  regularity, 
and  there  are  few  tongues  where  the  conformity  to 
general  rules  is  so  universal,  and  where  isolated, 
unrelated  philological  facts  are  so  rare.  At  the 
same  time,  there  is  enough  of  grammatical  inflec- 
tion to  familiarize  the  native  speaker   with  syntac- 


T3 


tical  principles  imperfectly  exemplified  in  Freucli 
and  English,  and  a  sufficiently  complex  arrangement 
of  the  period  to  call  into  constant  exercise  the 
logical  faculties  required  for  the  comprehension  of 
the  rules  of  univei*sal  grammar.  While,  therefore, 
I  by  no  means  maintain  that  German  has  any 
superiority  over  English  for  the  purposes  of  poetry, 
of  miscellaneous  literature,  the  intercourse  of  society, 
or  the  ordinary  cares  and  duties  of  life,  yet  as,  in 
itself,  an  intellectual,  and  especially  a  linguistic 
discipline,  it  has  great  advantages  over  any  of  the 
tongues  which  embody  the  general  literatm-e  of 
modern  Europe.  The  German  boy  comes  out  of 
the  nursery  scarcely  a  worse  grammarian,  and  a  far 
better  etymologist,  than  the  ancient  Roman,  and 
is  already  imbued  with  a  philological  culture  -^'hich 
the  Englishman  can  only  acquire  by  years  of  painful 
study.  Hence,  we  account  readily  for  the  com- 
parative excellence  of  German  dictionaries  and  other 
helj)s  to  the  full  knowledge  of  the  language,  while 
in  English,  having  no  grammar — we  have  till  lately 
possessed  no  grammars,  and  we  still  want  a  dic- 
tionary. In  both  English  and  French,  the  ety- 
mology is  foreign,  or  obscured  by  great  changes  of 
form,  the  syntax  is  arbitrary  and  conventional  (so 
far  as  those  terms  can  be  applied  to  anything  in 
language),  the  inflections  are  bald  and  imperfectly 


74 


distinguished,  and  the  number  of  solitary  exceptional 
facts,  especially  in  French,  is  very  great.  "When  I 
speak  of  the  poverty  of  French  inflections,  I  am 
aware  I  contradict  the  accidence,  which  shows  a 
very  full  system  of  varied  terminations,  l^ut  the  na- 
tive language  is  learned  by  the  ear,  and  the  spoken 
tongue  of  France  reduces  its  multitude  of  written 
endings  to  a  very  small  list  of  articulated  ones.  The 
signs  of  number  and  of  person,  and  often  of  tense  and 
gender,  to  which  the  inflections  are  restricted,  though 
well  marked  in  written  French,  disappear  almost 
wholly  in  pronunciation,  and  for  those  who  only 
speak,  they  are  non-existent.'"  While,  therefore,  for 
speaking  French  by  rote,  as  natives  do  all  tongues, 
no  grammar  is  needed,  yet  few  written  dialects  re- 
quire grammatical  aid  more  imperiously;  while,  at 
the  same  time,  the  grammar  is  of  so  special  a  char- 
acter as  to  teach  little  of  general  linguistic  prin- 
cij^le. 

The  German  philologist,  then,  begins  where  the 
Englishman  and  the  Frenchman  leave  off — or,  rather, 
at  a  point  to  which  the  great  mass  of  French  and 
English  literary  men  never  attain ;  and,  with  such 
an  advantage  in  the  starting  ground,  it  would  be 
strange  if  he  did  not  surpass  his  rivals. 

*  Aimais,  aimait,  aimaicnt  are  identical  in  sound ;  and  aimer,  aimez, 
aimai,  aime,  aimes,  and  aimeea  differ  so  little  from  the  former  group,  that 
ignorant  persons  often  confound  them  all  in  writing,  as  well  as  in  speaking. 


MR,    MAESH's    ADDEE6S.  Y5 

The  American  student  shares  with  the  English- 
man and  the  Frenchman  in  the  defect  of  early 
grammatical  discipline,  and,  possessing  few  large 
libraries,  no  collections  of  rare  early  editions,  no 
repositories  of  original  manuscripts,  he  labors 
under  the  further  inconvenience  of  a  want  of  access 
to  the  primitive  sources  of  etymological  instruction. 
For  the  present,  therefore,  he  must  renounce  the 
ambition  of  adding  anything  to  the  existing  stores 
of  knowledge  respecting  English  philology,  and 
content  himself  with  the  humbler  and  more  seliish 
aim  of  appropriating  and  elaborating  the  material 
which  more  fortunate  or  better-trained  European 
scholars  have  gathered  or  discovered.  We  must,  in 
the  main,  study  English  with  reference  to  practical 
use,  rather  than  to  philosophic  principle;  aim  at  the 
concrete,  rather  than  the  absolute  and  the  abstract. 
And  this  falls  in  with  what  is  eminently,  I  will  not 
say  happily,  the  present  tendency  of  the  American 
mind.  We  demand,  in  all  things,  an  appreciable, 
tangible  result,  and  if  a  particular  knowledge  can- 
not be  shown  to  have  a  vahie^  it  is  to  little  purpose 
to  recommend  its  cultivation  because  of  its  icoiih. 
We  must  all,  then,  men  of  action  and  men  of 
thought,  alike,  study  English  in  much  the  same  way, 
and  by  the  aid  of  the  same  instrumentalities — the 
practical  man,  because  he  aims  at  a  practical  end; 


Y6 


tlie  philosopliic  thinker,  because  lie  is  destitute  of 
the  means  of  apj^roximating  to  his  end  by  any 
higher  method  than  the  imperfect  course  which 
alone  is  open  to  the  American  scholar. 

There  are  circumstances  which  recommend  the 
study  of  English  specially  to  us  Americans,  others 
which  appeal  equally  to  all  who  use  the  Anglican 
speech.  Of  the  former,  most  prominent  is  the  fact 
that  we,  in  general,  require  a  more  comprehensive 
knowledge  of  our  own  tongue  than  any  other  people. 
Except  in  mere  mechanical  matters,  and  even  there 
far  more  imperfectly,  we  have  adopted  the  principle 
of  the  division  of  labor  to  a  more  limited  extent  than 
any  modern  civilized  nation.  Every  man  is  a  dab- 
bler, if  not  a  master,  in  every  knowledge.  Every 
man  is  a  divine,  a  statesman,  a  physician,  and  a  lawyer 
to  himself,  as  well  as  a  counsellor  to  his  neighbors, 
on  all  the  interests  involved  in  the  sciences  appro- 
priately belonging  to  those  professions^  We  all 
read  books,  magazines,  newspapers,  all  attend  learned 
lectures,  and  too  many  of  us,  indeed,  write  tjie  one, 
or  deliver  the  other.  We  resemble  the  Margites 
of  Homer,  who  iio'xx'  ri-tldTaro  tp/a,  practiced  every  art, 
and  if,  as  he  xaxwj  6'  yJ^iVraro  tfavTa^  buuglcd  in  all,  we, 
too,  must  fall  short  of  univei'sal  perfection,  we  still 
need,  with  our  multifarious  strivings,  an  encyclopedic 
training,  a  wide   command   over  the   resources   of 


MK.  marsh's  address.  TT 

our  native  tongue,  and,  more  or  less,  a  knowledge 
of  all  its  special  nomenclatures.  But  this  very  fact 
of  the  general  use  of  the  whole  English  vocabulary 
among  us  is  a  dangerous  cause  of  corruption  of 
speech,  against  which  the  careful  study  of  our 
language  is  an  important  antidote.  Things  much 
used  inevitably  become  much  worn,  and  it  is  one  of 
the  most  curious  phenomena  of  language,  that 
words  are  as  subject  as  coin  to  defacement  and  abra- 
sion, by  brisk  circulation.  The  majority  of  those 
who  speak  any  tongue  incline  to  speak  it  imperfectly, 
and  where  all  use  the  dialect  of  books,  the  vehicle  of 
the  profoundest  thoughts,  the  loftiest  images,  the 
most  sacred  emotions,  that  the  intellect,  the  fancy, 
the  heart  of  man  has  conceived,  there  special  precau- 
tions are  necessary,  to  prevent  that  medium  from 
becoming  debased  and  vulgarized  by  corruptions  of 
form,  or,  at  least,  by  association  with  depraved  beings 
and  unworthy  themes.  While,  therefore,  I  would  open 
to  the  humble  and  the  unschooled  the  freest  access 
to  all  the  rich  treasures  which  English  literature 
embodies,  I  would  inculcate  the  importance  of  a 
careful  study  of  genuine  English,  and  a  conscientious 
scrupulosity  in  its  accurate  use,  upon  all  who  in  any 
manner  occupy  the  position  of  teachers  or  leaders  of 
the  American  mind,  all  wliose  habits,  whose  tastes, 
or  whose  vocations,  lead  them  to  speak  oftener  than 
to  hear. 


78  3rR.  maesh's  addeess. 

But,  as  I  observed,  tliere  are  considerations,  com- 
mon to  tlie  Englishman  and  tlie  American,  which 
powerfully  recommend  the  study  of  our  language  to 
thinking  men.  One  of  the  most  important  of  these 
LS  a  repetition  of  the  argument  I  have  just  used, 
but  in  a  more  extended  application.  I  allude  to 
what,  for  want  of  any  other  equally  aj)propriate 
epithet,  I  must  characterize  by  a  designation  much 
abused  both  by  those  who  rally  under  it  as  a  watch- 
word of  party,  and  by  those  to  whom  it  is  a  token  of 
offense — I  mean  the  conservatism  of  such  studies.  It 
is  doubted,  by  the  ablest  judges,  whether,  except  in 
the  introduction  of  new  names  for  new  things,  Eng- 
lish has  made  any  solid  improvement  for  two  centu- 
ries and  a  half,  and  few  are  sanguine  enough  to 
believe  that  future  changes  in  its  structure,  or  in  its 
vocabulary,  unless  in  the  way  just  stated,  will  be 
changes  for  the  better.  It  is  obvious,  too,  that,  in 
proportion  as  new  grammatical  forms,  and  new  desig- 
nations for  familiar  things  and  thoughts,  are  intro- 
duced, older  ones  must  grow  obsolete,  and,  of  course, 
the  existing,  and,  especially,  the  earlier  literature  of 
England,  will  become  gradually  less  intelligible.  The 
importance  of  a  permanent  literature,  of  authori- 
tative standards  of  expression,  and,  especially,  of 
those  great,  lasting  works  of  the  imagination,  which, 
in  all  hi'ghly-cultivated  nations,  constitute  the  "  vol- 


\ 


MR.  marsh's  address.  Y9 

innes  paramount''''  of  their  literature,  lias  been  too 
generally  appreciated  to  require  here  argument  or  illus 
tration.  Suffice  it  to  say,  they  are  among  the  most 
potent  agencies  in  the  cultivation  of  the  national 
mind  and  heart,  the  strons^est  bond  of  union  in  a 
homogeneous  people,  the  surest  holding  ground 
against  the  shifting  currents,  the  ebb  and  flow  of 
opinion  and  of  taste. 

ISTow,  the  Anglo-Saxon  race  is  fortunate  in  possess- 
ing more  such  volumes  paramount  than  any  other 
modern  people.  The  Greeks  had  their  moral  and 
sententious  Hesiod;  their  great  tragic  trio;  their 
comic  Aristophanes  and  Menander ;  they  had  Hero- 
dotus, and  Thucydides,  and  Plato,  and  Xenophou ;  and, 
above  all,  their  epic  Homer,  whose  story  and  whose 
speech  were  more  closely  interwoven  with  the  very 
soul  of  the  whole  Hellenic  people  than  was  ever  other 
secular  composition  with  the  life  of  man ;  the  Romans 
had  Ennius,  and  Terence,  and  Plautus,  and,  at  last, 
but  only  when  all  was  lost,  Horace,  and  Virgil,  and 
Cicero ;  the  Italians  have  Dante,  and  Petrarch,  and 
Tasso,  and  Ariosto ;  the  Icelanders  have  Laxdsela, 
the  story  of  Njall,  and  the  Chronicles  of  Snorro  ;  and 
we,  more  favored  than  all,  have  Chaucer,  and  Spen- 
ser, and  Bacon,  and  Milton,  and  Shakspeare — each, 
in  his  own  field,  as  great  as  the  mightiest  that  ever 
wielded  the  peii  in  the  like  kind;  and,  beyond  all 


:.tt'c 


80  ivn?.   ]\rARSHS    addeess. 

these,  we  liave  tlie  oracles  of  our  faitli,  stamped  witli 
the  self-approving  impress  of  certain  verity,  and  ren- 
dered, hj  English  pens,  in  a  form  of  rarer  beauty 
than  has  elsewhere  clothed  the  words  of  God  in  the 
speech  of  man. 

Now,  all  these  books  have  been   for   centmies  a 
daily  food,  an  intellectual  pabulum,  that  actually  has 
entered  into  and  moulded  the  living  thought  and 
action  of  gifted    nations;  and,  in   the   case   of  the 
Anglican  people,  it  will  not  be  disputed  that,  work- 
ing, as  they  have,  all  in   one  direction,  their  great 
authors  have  been  more  powerful   than  any  other 
influence   in   first  making,   and    then   keeping,   the 
Englishman  and  the  American  what  they  are,  what 
for  hundreds  of  years  they  have  been,  what,  God 
willing,  for  thousands  they  shall  be,  the  pioneer  race 
in  the  march  of  man  towards  the  highest  summits  of 
worthy  human  achievement.     The  ]3ath  of  national 
literature  is  that  of  those   comets  which   long   ap- 
proach the  central  orb,  and  long  recede,  but  never 
return  to  the  perihelion,  and  the  language  of  a  people 
has  ordinarily  but  one  period  of  culmination.     When 
genius  has  evolved  the  best  thoughts  of  a  given  state 
of   society,  and   elaborated   the   choicest    forms   of 
expression  of  which  a  given  speech  is  capable,  it  has 
anticipated  and  appropriated  the  gi^eatest  results  of 
that  condition  of  human  life,  and  subsequent  litera 


MR.     MARSHS     ADDRESS.  81 

ture  is  but  reproductive,  not  creative  in  its  character, 
until  some  mighty,  and,  for  the  time,  destructive 
revolution,  has  dissolved  and  re-amalgamated  the 
elements  of  language  and  of  social  life  in  new  and 
diverse  combinations. 

That  the  English  tongue,  and  the  men  who  speak 
it,  will  yet  achieve  great  victories  in  the  field  of 
mind,  great  works  in  the  world  of  sense,  we  have 
amj)le  self-conscious  assurance;  but,  in  the  existino- 
state  of  society,  it  is  vain  to  expect  that  any  future 
literary  productions  can  occupy  the  place,  or  exert 
the  deep-pervading  influence,  of  the  volumes  I  have 
named.  To  them,  therefore,  and  to  the  dialect  which 
is  their  vehicle,  the  instinct  of  self-preservation  impels 
us  tenaciously  to  cling,  and  when,  through  our  appetite 
for  novelty,  our  incurious  neglect  of  the  beautiful  and 
the  great,  these  volumes  cease  to  be  authorities  in 
language,  standards  of  moral  truth  and  aesthetical 
beauty,  and  inspiriters  of  thought  and  of  action,  we 
shall  have  lost  the  sj^rings  of  national  greatness,  which 
it  most  concerned  us  to  preserve. 

We  hear  much,  in  political  life,  of  recurrence  to 
first  principles,  and  startling  novelties  not  unfre- 
quently  win  their  way  to  popular  acceptance  under 
that  disguise.  With  equal  truth,  and  greater  sin- 
cerity, we  may  say  that,  in  language  and  in  literature, 
nothing  can  save  us  from  ceaseless  revolution  but  a 


82 


frequent  recourse  to  the  primitive   autliorities   and 
tlie  recognized  canons  of  liigliest  perfection. 

In  commencing  the  study  of  early  English^  y^^^^^o 
persons  are  not  unfrequently  rej^elled  by  differences 
of  form,  wliicli  seem  to  demand  a  considerable 
amount  of  labor  to  master,  Uuliapjpilj,  English 
scholars,  themselves  often  better  instructed  in  other 
tongues  than  in  their  own,  have  very  frequently 
sanctioned  the  mistake,  and  encoui'aged  the  indolence 
of  cotemporaiy  readers,  by  editing  modernized  edi- 
tions of  good  old  authors,  and,  in  thus  clothing  them 
anew,  so  changed  their  outward  aspect,  and  often 
their  essential  character,  that  the  parents  would 
scarcely  be  able  to  recognize  their  own  progeny. 
The  British  press  has  teemed  with  disgracefully- 
mutilated  and  disguised  editions,  while  scrupulously 
faithful  reprints  of  early  English  works  have,  until 
lately,  not  been  often  attempted,  or  ever  well  encour- 
aged. As  a  general  rule,  in  the  republication  of 
works  which  genius  and  time  have  sealed  with  the 
stamp  of  authority,  no  change  whatever,  except  the 
correction  of  ob^dous  typographical  errors,  should  be 
tolerated,  and  even  these  should  be  ventured  on  only 
with  extreme  caution,  because  it  often  turns  out  that 
what  is  hastily  assumed  to  have  been  a  misprint,  is, 
in  fact,  a  form  dehberately  adopted  by  a  writer, 
better  able  to  judge  what  was  the  true  orthography 
for  the  time,  than  any  later  scholar  can  be. 


83 

The  rule  of  Coleridge  has  nowhere  a  juster  appli- 
cation than  here :  That,  when  we  meet  an  apparent 
error  in  a  good  author,  we  are  to  j)resume  ourselve8 
"ignorant  of  his  understanding,  until  we  are  certain 
that  we  understand  his  ignorance."  The  number  of 
scholars  who  are  so  thoroughly  possessed  of  the 
English  of  the  sixteenth,  not  to  mention  earlier 
centuries,  as  to  be  safely  entrusted  with  the  cor- 
rection of  authors  of  that  period,  is  exceedingly 
small,  and  I  doubt  whether  it  would  be  possi- 
ble to  cite  a  sinMe  instance  where  this  has  been 
attempted,  without  grievous  error,  while,  in  most 
cases,  the  book  has  been  not  merely  lessened  in 
value,  but  rendered  worse  than  useless  for  all  the 
purposes  of  philology  and  true  literature." 

*  I  will,  at  tlie  risk  of  the  imputation  of  liypercriticism,  illustrate  by  a 
single  instance :  The  recently-discovered  manuscript  of  the  Earl  of  Devon- 
shire's translation  of  Paleario's  Treatise  on  the  Benefits  of  Christ's  Death 
is  evidently  a  copy,  made  by  an  ignorant  transcriber,  and  its  orthography  is 
extremely  incorrect  and  variable.  In  preparing  it  for  the  press,  it  was,  unfor- 
tunately, deemed  expedient  to  reform  the  spelling,  for  the  sake  of  making  it 
more  uniform  and  intelligiljle,  as  well  as  correct,  and  the  task  has  been  exe- 
cuted with  great  care,  and  in  as  good  faith  as  the  erroneous  principle 
adopted  would  admit  of.  As  a  frontispiece,  a  fac-siniile  of  one  of  the  very 
small  pages  of  the  manuscript  is  given,  containing  eighteen  linos,  or  about 
one  hundred  and  twenty-five  words.  In  printing  the  text,  the  editor  has 
omitted  a  comma  in  the  seventh  line,  and  thereby  changed,  or,  at  least, 
obscured,  the  meaning  of  a  very  important  and  very  clear  passage,  which 
contained  the  marrow  of  the  whole  treatise.  Of  course,  such  a  departure 
from  the  letter  in  a  weighty  period  destroys  the  confidence  of  critical 
readers  in  the  edition,  and  the  book,  in  a  grammatical  point  of  view,  becomes 
worthless.  The  manuscript  in  question  is  one  of  the  most  important  recent 
acquisitions  to  the  theology  of  the  Reformation  and  the  early  literature  of 
England,  and  the  voluntary  admission  of  any  changes  in  its  text  shows  a 
want  of  exact  scholarship  in  a  quarter  where  we  had  the  best  right  to 
expect  it 


84  MR.   maesh's  address. 

But  for  the  unfortunate  readiness  with  which 
editors  and  publishers  have  yielded  to  the  popular 
demand  for  conformity  to  the  spelling  and  the  vocab- 
ulary of  the  day,  the  knowledge  of  genuine  English 
would  now  be  both  more  general  and  further 
advanced  than  it  is.  The  habit  of  reading  books  as 
they  were  written  would  have  kept  up  the  compre- 
hension, if  not  the  use,  of  good  old  forms  and  choice 
words,  w^hich  have  irrecoverably  perished,  and  the 
English  of  the  most  vigorous  period  of  our  litera- 
ture w^ould  not  now  be  sneered  at  as  obsolete  and 
unintelligible. 

After  all,  the  difficulties  of  acquiring  a  familiar 
acquaintance  with  the  dialect  of  the  reign  of 
Edward  III.  are  extremely  small.  Let  not  the 
student  be  discouraged  by  an  imperfect  and  irregu- 
lar orthography,  or,  now  and  then,  a  forgotten  word, 
and  a  month's  study  will  enable  him  to  read,  w4th 
entire  readiness  and  pleasure,  all  that  the  genius  of 
England  has  produced  during  the  five  centuries  that 
have  elapsed  since  English  literature  can  be  said  to 
have  had  a  being. 

I  cannot,  of  course,  here  dilate  upon  the  value  of 
a  familiarity  with  the  earlier  English  writers,  but  I 
may,  perhaps,  be  indulged  in  a  momentary  reference 
to  the  greatest  of  them,  the  perusal  of  whose  works 
alone  would  much  more  than  compensate  the  little 


MR.   maesh's  address.  85 

labor  required  to  understand  the  dialect  in  which 
they  are  written.  Neither  the  prose  nor  the  verse 
of  the  English  literature  of  the  fourteenth  century 
comes  up  to  the  elaborate  elegance  and  the  classic 
finish  of  Boccaccio  and  of  Petrarch.  But,  in  orisr- 
inal  power  and  in  all  the  highest  quahties  of  poetry, 
no  continental  writer  of  that  period,  with  the  single 
exception  of  Dante,  can,  for  a  moment,  be  comj^ared 
with  Chaucer,  who,  only  less  than  Shakspeare, 
deserves  the  epithet,  myriad-minded,  so  happily 
applied  by  Coleridge  to  the  great  dramatist.  He 
is  eminently  the  creator  of  our  literary  dialect,  the 
inventor,  or,  at  least,  the  introducer,  of  our  finest 
poetical  forms,  and  so  essential  were  his  labors  in 
the  founding  of  our  national  literature,  that,  without 
Chaucer,  the  seventeenth  century  could  have  pro- 
duced no  Milton,  the  nineteenth  no  Keats.  It  is 
through  ignorance  alone,  that  his  diction  and  his 
versification  have  been  condemned  as  rude  and 
unpolished ;  and,  though  there  are  some  difficulties  in 
his  prosody,  which  have  not  yet  been  fully  solved, 
the  general  flow  of  his  verse  is  scarcely  inferior  to 
the  melody  of  Spenser.  There  can  be  little  doubt 
that  his  metrical  system  was  in  perfect  accordance 
with  the  orthoepy  of  his  age,  and  it  was  full  two 
centuries  before  any  improvements  were  made  upon 
his  diction  or  his  numbers. 


86  MK.   marsh's  address. 

I  said,  ill  the  outset,  that  there  were  circumstances 
in  the  position  and  the  external  relations  of  the  Eng- 
lish language  which  recommended  its  earnest  study 
and  cultivation.  I  refer,  of  course,  to  the  command- 
ing political  influence,  the  wide-spread  territory, 
and  the  commercial  importance  of  the  two  great 
mother-countries  whose  vernacular  it  is.     Althouo^h 

o 

England  is  no  longer  at  the  head  of  the  European 
political  system — a  j^osition  which  she  justly  for- 
feited when  she  j)ermitted  her  statesmen  to  sacri- 
fice the  cause  of  popular  liberty  upon  the  European 
continent — yet,  in  spite  of  the  errors  of  her  rulers, 
she  is  still  the  leading  influence  in  the  sphere  of 
commerce,  of  industry,  of  progressive  civilization, 
and  of  enlightened  Christian  philanthropy. 

The  British  capital  is  at  the  geographical  centi-e 
of  the  terrestrious  portion  of  the  globe,  and  while 
other  great  cities  represent  individual  nationalities, 
or  restricted  and  temporary  aims,  the  lasting,  car- 
dinal interests  of  universal  humanity  have  their 
brightest  point  of  radiation  in  the  city  of  London. 
The  language  of  England  is  spoken  by  greater  num- 
bers than  any  other  Christian  speech,  and  it  is  the 
vehicle  of  a  wider,  purer,  more  beneficent  moral 
action  than  any  other  existing  tongue.  Its  preva- 
lence is  everywhere  marked  by  social  order,  by  civil 
and  rehgious   liberty,  by  general   intelhgence   and 


ME.   jiaesh's  addkess.  87 

progressive  knowledge,  by  enlightened  and  compre- 
hensive  charity;  and  it  is  remarkable  that,  while 
some  younger  languages  and  younger  races  are 
decaying  and  gradually  disappearing  from  their 
natal  soil,  the  English  speech  and  the  descendants 
of  those  who  first  employed  it,  are  making  hourly 
conquests  of  new  territory,  and  have  already  estab- 
lished their  posts  within  hailing  distance  throughout 
the  circuit  of  the  habitable  globe.  The  Euglish  lan- 
guage is  the  special  organ  of  all  the  great,  world-wide 
charities  which  so  honorably  distinguish  the  present 
from  all  preceding  ages.  With  little  of  the  specu- 
lative universal  philanthropy  which  has  been  so 
loudly  preached  and  so  little  practiced  elsewhere, 
the  English  people  have  been  foremost  m  every 
scheme  of  active  benevolence,  and  they  have  been 
worthily  seconded  by  their  American  brethren.  The 
English  Bible  has  been  scattered  by  hundreds  of 
millions  over  the  face  of  the  earth,  and  English- 
speaking  missionaries  have  planted  their  maternal 
speech  at  scores  of  important  points,  to  which,  had 
not  their  courageous  and  self-devoting  energy  paved 
the  way,  not  even  the  enterprise  of  trade  coukl  have 
opened  a  path.  Hence,  English  is  emphatically  the 
language  of  commerce,  of  civilization,  of  social  and 
religious  freedom,  of  progressive  intelligence,  and  of 
active  catholic  philanthropy ;  and,  therefore,  beyond 


any  tongue  ever  used  by  man,  it  is  of  right  tlie  cos- 
mopolite speecli. 

That  it  will  ever  become,  as  some  dream,  literally 
universal  in  its  empire,  I  am,  indeed,  far  from  believ- 
ing; nor  do  I  suppose  that  the  period  will  ever 
arrive,  when  our  many-sided  humanity  will  content 
itself  with  a  single  tongue.  In  the  incessant  change 
which  all  language  necessarily  undergoes,  English 
itself  will  have  ceased  to  exist,  in  a  form  identifiable 
with  its  present  character,  long  before  even  the  half  of 
the  human  family  can  be  so  far  harmonized  and  assimi- 
lated as  to  employ  one  common  medium  of  inter- 
course. Languages  adhere  so  tenaciously  to  their 
native  soil,  that,  in  general,  they  can  be  eradicated 
only  by  the  extirpation  of  the  races  that  sj)eak  them. 
To  take  a  striking  instance :  the  Celtic  has  less  vital- 
ity, less  power  of  resistance,  than  any  other  speech 
accessible  to  philological  research.  In  its  whole 
knoxvTi  history  it  has  made  no  conquests,  and  it  has 
been  ever  in  a  waning  condition,  and  yet,  compara- 
tively  feeble  as  is  its  self-sustaining  j^ower,  two 
thousand  years  of  Koman  and  Teutonic  triumphs 
have  not  stifled  its  accents  in  England  or  in  Gaul.  It 
has  died  only  with  its  dying  race,  and  centuries  may 
yet  elai^se  before  English  shall  be  the  sole  sjDeech  of 
Britain  itself 

In  like  manner,  not  to  speak  of  other  sporadic 


MR.     MAPvSn's    ADDRESS.  89 

ancient  dialects,  the  primitive  language  of  Spain, 
after  a  struggle  of  two  and  twenty  centuries  with 
Phoenicians,  and  Celts,  and  Carthagenians,  and  Greeks, 
and  Romans,  and  Goths,  and  Arabs,  is  still  the  daily 
speech  of  half  a  million  of  people.  If,  then,  such  be 
the  persistence  of  language,  how  can  we  look  forward 
to  a  period  when  English  shall  have  vanquished  and 
superseded  the  Chinese  and  the  Tartar  dialects,  the 
many  tongues  of  j)olyglot  India,  the  yet-surviving 
Semitic  speeches,  in  their  wide  diffusion,  and  the 
numerous  and  powerful  Indo-European  languages, 
which  are  even  now  disputing  with  it  the  mastery  ? 
In  short,  the  prospect  of  the  final  triumph  of  any  one 
tongue  is  as  distant,  as  improbable,  I  may  add,  as 
undesirable,  as  the  subjection  of  universal  man  to  one 
monarchy,  or  the  conformity  of  his  multitudinous 
races  to  one  standard  of  color,  one  physical  type. 
The  Author  of  our  being  has  implanted  in  us  our 
discrepant  tendencies,  for  wise  purposes,  and  they 
are,  indeed,  a  part  of  the  law  of  life  itself.  Divemty 
of  growth  is  a  condition  of  organic  existence,  and  so 
long  as  man  possesses  powers  of  spontaneous  develop- 
ment and  action,  so  long  as  he  is  more  and  better  than 
a  machine,  so  long  he  will  continue  to  manifest  out- 
ward and  inward  differences,  unlikeness  of  form,  antag- 
onism of  opinion,  and  varieties  of  speech.  But  yet, 
though  English  M'ill  not  supersede,  still  less  extirpate. 


90  MR.   marsh's   address. 

the  thousand  languages  now  spoken,  it  is  not  unrea- 
sonable to  ex|')ect  for  it  a  wider  diffusion,  a  more 
commanding  influence,  a  more  universally-acknowl- 
edged beneficent  action,  than  has  yet  been  reached, 
or  can  hereafter  be  acquired,  by  any  ancient  or  now- 
existent  tongue,  and  we  may  hope  that  the  great 
names  which  adorn  it  will  enjoy  a  wider  and  more 
durable  renown  than  any  others  of  the  sons  of  man. 

These  brief  remarks  do  but  hint  the  importance 
of  the  studies  I  am  advocating,  and  it  will  be  the 
leading  object  of  my  future  discourses  more  fully  to 
expound  their  claims,  and  to  point  out  the  best 
method  of  pursuing  them. 

A  series  of  lessons  upon  the  technicalities  of  Eng- 
lish philology  would,  it  is  thought,  be  premature, 
and,  moreover,  adequate  time  and  means  for  the 
execution  of  an  undertaking,  involving  so  vast  an 
amount  of  toil,  have  not  yet  been  given.  That  must 
be  the  work,  if  not  of  another  laborer,  at  least,  of 
other  years,  and  our  present  readings  must  be 
regarded  only  as  a  collection  of  observations  upon 
the  principles  of  articulate  language,  as  exemplified 
in  the  phonology,  vocabulary,  and  syntax  of  English ; 
or,  in  other  words,  as  a  course  preparatory  to  a 
course  of  lectures  on  the  Eng^lish  tons^ue.  Such  as 
I  describe  the  course,  too,  I  shall  endeavor  to  make 
each  individual  lecture,  namely,  a  somewhat  informal 


ME.    MARSnS     ADDRESS.  91 

presentation  of  some  one  or  more  philological  laws, 
or  general  facts,  in  their  connection  with  the  essen- 
tial character,  or  historical  fortunes,  of  our  own 
S23eech. 

I  will  not  dilate  on  the  difficulties  attending  the 
preparation  of  so  extensive  a  course,  in  a  few  weeks 
of  often-interrupted  labor,  without  access  to  large,  or 
specially-selected,  libraries,  and,  in  fact,  almost 
wholly  without  appropriate  aids  and  appliances — 
difficulties  which,  duly  weighed,  would  rather  pro- 
voke your  censure  of  the  speaker  for  undertaking 
a  task  so  much  beyond  his  forces  and  his  means, 
than  conciliate  your  indulgence  for  his  imperfect 
execution  of  it;  but,  I  must  be  pardoned  for 
acknowledging  what  it  will  be  no  exaggeration  to 
call  my  perplexity,  in  determining  upon  the  extent 
to  which  the  course  ous'ht  to  assume  a  scientific  or  a 
popular  form.  The  lectures  are,  under  the  circum- 
stances, essentially  experimental,  the  character  and 
tastes  of  the  small  audiences,  I  was  encom-aged  to  ex- 
pect, uncertain;  but  the  necessities  of  the  case  have 
decided  the  question  for  me,  and,  as  in  many  other 
instances,  where  external  conditions  control  our 
action,  in  a  way  which  my  own  judgment  would 
probably  have  approved. 

The  preparation  of  a  series  of  thoroughly-scientific 
discourses  upon  the  English  tongue,  within  the  time 
1 


92  MR.   marsh's   address. 

and  witli  the  means  at  my  command,  was  impossible, 
and  the  attempt  could  only  have  resulted  in  a  discred- 
ital)le  failure.  I,  therefore,  adopted  the  plan  I  have 
described,  as  the  only  practicable  course,  and,  not 
improbably,  also  the  best.  This  point  being  disposed 
of,  there  remained  only  the  embarrassment  arising 
from  the  uncertainty  of  the  amount  of  philological 
attainment  generally  possessed  by  my  audience.  I 
have  thought  myself  authorized  to  presume  that, 
however  few  in  numbers,  it  would  embrace  persons 
somewhat  widely-separated  in  degree  of  culture,  and 
as  I  desire  to  make  my  discourses,  so  far  as  it  lies  in 
my  po^er,  acceptable,  if  not  instructive,  to  all,  I  shall 
ask  the  scholar  sometimes  to  pardon  familiar,  even 
trite,  statements  of  principle,  illustrations  which  can 
scarcely  claim  to  be  other  than  trivial,  and  repeti- 
tions which  clearness  and  strength  of  imj^ression  may 
render  necessary  for  some,  while  I  shall  hope  the  less 
advanced  will  excuse  me  when  I  indulge  in  specula- 
tions addressed  to  those  to  whom  long  study  has 
rendered  recondite  doctrine  more  intelligible.  In 
the  main,  I  shall  address  you  as  persons  of  liberal 
culture,  prepared,  by  general  philological  education, 
to  comprehend  linguistic  illustrations  drawn  from  all 
not  widely-remote  and  unfamiliar  sources,  but  who, 
from  unexcited  curiosity,  or  the  superior  attractions 
and  supposed  claims  of  other  knowledges,  have  not 


MR.    MAESn's    ADDRESS.  93 

made  the  English  language  a  matter  of  particular 
study,  thought,  or  observation;  and  such  I  shall  hope 
to  convince  that  the  subject  is  possessed  of  sufficient 
worth  and  sufficient  interest  to  deserve  increased 
attention,  as  a  branch  of  American  education. 


B 


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